Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nenoRY of 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KDC 465.L4T78 
 
 Treatise on legacies and provisions mort 
 
 3 1924 024 636 098 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024636098 
 
TREATISE ON LEGACIES 
 
 PEOVISTONS MOETIS CAUSA: 
 
 SPECIAL EEFEEENCE TO THE DOCTRINE OF VESTING UNDER 
 THE TRUST-DEED. 
 
 WITH AN APPENDIX, 
 
 CONTAINING FORMS OF DESTINATIONS, AND ANALYSES OF THE *! 
 CONFIRMATION ACTS OF 1858 AND 1859, Ac. 
 
 EDINBUEGH: 
 BELL & BRADFUTE, 12 BANK STREET. 
 
 MDCCCLXI. 
 
JOHN BAXTEK, PBINTEK, JAMBS COUET, HEAD OF MOUSD, 
 ErlNBDBGH. 
 
PEEFAOE. 
 
 The doctrine of vesting under the trust-deed is 
 not only one of the most important and difficult in 
 our law, but one of the most fruitful sources of liti- 
 gation, as will be seen by looking into our reports. 
 Beyond this simple fact, therefore, nothing more 
 may be said to show that the subject is deeply im- 
 portant. It would appear that no sooner does a 
 trust-deed come into operation by the death of the 
 truster, than it is forthwith brought into Court for 
 a judicial interpretation. From the number of con- 
 flicting decisions, trustees find themselves in dan- 
 ger by acting upon their own interpretation, and 
 accordingly seek the protection of the Court in exe- 
 cuting the purposes of the trust, rather than run 
 any risk, or be harassed by the claims of contending 
 parties. Amultiplepoindingis raised, by which the 
 
claimants dispute among themselves, often to the 
 entire exhaustion of the trust-funds. This surely 
 is not very consolatory for a testator. 
 
 AU the most important cases are referred to, 
 the disputed clauses quoted, the decisions, and the 
 grounds upon which they have followed, are also 
 set forth, by which it is thought much time and 
 trouble will be saved in looking up cases of vesting 
 in the reports. 
 
 Edinbuegh, December 1860. 
 
CONTENTS. 
 
 Page 
 
 iNTBODUCHOir, 1 
 
 DEPiNinoiir OF a Lkqaot, 7 
 
 Who CJiX gbant a Legacy, 11 
 
 How A Legaci is oonstitoted, 12 
 
 Pebson to whom Legacy may be gbanted, . . , . 16 
 
 TJniyeesal Legacy, 19 
 
 Geneeal Legacy, 20 
 
 Special Legacy, ... ... 21 
 
 NmroirpATiVB Legacy, 22 
 
 Lesatitm libebatiohis, ... ... 23 
 
 LeGAXOI BEI ALIEKiB, .' . 24 
 
 Legacy or hebitagb, 24 
 
 Conditions as to testing of LEGAcnts, ... 25 
 
 I. Implied Conditions, 25 
 
 1. The Legatee must suxviye the Testator, . . 25 
 
 2. Conditio si testator sine liberis deoesserit, . 27 
 S. Si institntus sine liheris deeesserit, . . 28 
 
 II. The Expressed Conditions, 32 
 
 1. Legacies payable at a certain or uncertain time or 
 
 event, 32 
 
 2. Legacies granted nnder specific conditions, . 88 
 
 3. Vesting of Legacies or ProTisions mortis eaum, 
 
 under the Trust-Deed, 44 
 
CoNDITIOlfAL ImSTITUTIOU AND StTBSTITUTIOH, .... 71 
 
 Leoaoibb as aiteoted et Legitum, . . 87 
 
 Double legacies, . . . . . . 88 
 
 Revocation oe legacies, 90 
 
 Abatement or legacies, ....... 93 
 
 Appendix, 97 
 
 Clauses of Destinations, 97 
 
 Intestate Moveable Succession Act, 25th May 1859, . 98 
 Analyses of Oonfiimation and Probate Acts, 1858 and 1859, 100 
 
 Copy Petition for Decemitnre, . ... 100 
 
 Copy Advertisement, 103 
 
 Additional Inventory, ... . 104 
 
 New Form of AfBdavit, . .... 105 
 
 The Thellnson Act, 106 
 
A 
 
 CHAPTEE ON LEGACIES. 
 
 INTRODUCTION. 
 
 Geneballt speaking, every one has the power to 
 regulate the disposal of his estate after his death ; 
 and the Law, in its wisdom, regulates the disposal of 
 the estate of those who may die intestate. It pre- 
 sumes, when a man dies intestate, that he meant 
 legal succession to operate. In the progress of 
 civilization among nations there is observed — first, 
 simple possession of the subject ; then the right of 
 inheritance in favour of children ; and, lastly, the 
 power of testing. From a reference to the testa- 
 ment in the Regiam Majestatem, it would appear 
 that it is one of the most ancient of our deeds ; thus 
 showing that in Scotland this right has been long 
 enjoyed. The power of testing, however, is under 
 certain Umitations, as in the case of a father dying 
 leaving a widow and children. In this case, it 
 would be unnatural if the law allowed him to dis- 
 pose of his whole property otherwise than to them. 
 
It is difficult to understand upon what principle of 
 equity, or law, the rights of the widow and children 
 were abolished by the law of England, when at one 
 time these existed in that country. There they 
 have' no legal claim unless the father die intestate. 
 
 It may he remarked here, that our law on this 
 subject, as well as every other branch of our juris- 
 prudence, is almost borrowed from the Eoman law, 
 as well as that of England and France. It is not 
 to be wondered at, therefore, that there is a great 
 similarity in the law of these countries at the pre- 
 sent day. And this proves the wisdom of the Eoman 
 legislators, in producing such a code of jurisprudence 
 which has met with the general approbation of civi- 
 lized nations. 
 
 The following are a few observations on the 
 general principles affecting the testament, which is 
 generally the vehicle, by which legacies are be- 
 queathed. A testament is a written deed, for re- 
 gulating the disposal of a person's moveable or per- 
 sonal estate after his death ; and, for the purpose of 
 carrying out the intention of the testator, a person 
 is appointed executor. A testament can only be- 
 queath moveable estate, and is, therefore, ineffectual 
 for conveying heritable estate, or bequeathing a 
 gift or legacy of an heritable subject. In some cir- 
 cumstances, however, a legacy of heritage may be 
 effectual, on the principle of approbate and repro- 
 bate, to be afterwards alluded to. This leads to 
 the important distinction of what is heritable and 
 what is moveable, in order -to know what can be 
 bequeathed by a testament and -what cannot. A 
 
different rule holds in England ; there a person can, 
 by his will, bequeath real and personal estate ; 
 Paterson's 0. E. and S. L., p. 219. 
 
 Corporeal property, such as lands, with the mines, 
 minerals, turf for fuel, not separated, are heritable, as 
 weU as trees and wild plants not recovered from the 
 ground. Houses, with their fixtures, and likewise 
 machinery, are also heritable ; but some nice ques- 
 tions have arisen as to whether machinery is herit- 
 able or moveable. In a question with creditors, some 
 lawyers hold that whatever can be removed with 
 safety to itself and the property, is moveable, but it 
 is different as to succession ; More's Notes on Stair. 
 Leases of lands and tenements, heirship moveables, 
 and incorporeal rights of land, as teinds, patronage, 
 annual-rents, debts heritably secured, <fec., are also 
 heritable. In a trust-disposition and settlement, 
 where there is a power of sale to trustees, this does 
 not imply that the succession of heritage is to be 
 treated as moveable, if there be no direction to sell. 
 But where there is a discretionary power to sell, 
 the character of the succession of the truster will 
 depend upon the resolution of the trustees ; Koss' 
 L.C. (Land Eights), vol. i, p. 524. 
 
 Moveable subjects are those which do not possess 
 the feudal character, and comprehend money, fur- 
 niture, cattle, corn, mercantile stocks, ships, &c. 
 The rents of heritable subjects already due are also 
 moveable. 
 
 However, legacies are often bequeathed by a deed 
 conveying both heritable and moveable estate, and 
 would be effectual although the deed was ineffectual 
 
 a2 
 
as a conveyance of heritage. It is the common 
 practice for those who are possessed of both, herit- 
 able and moveable estate to execute a conveyance 
 de prcesenti, that is, in wordl signifying an imme- 
 diate conveyance, such as, "I hereby dispone and 
 convey," &c. In such a deed the granter reserves 
 his own liferent, power to alter the same, and de- 
 clares it effectual, although undelivered at his death. 
 Such a deed requires to be executed more than 
 sixty days before the death of the granter, if he 
 should be iU of disease at the date of the deed. 
 This is called the law of deathbed. In reducing a 
 deed on the head of deathbed, the heir-at4aw must 
 show that his ancestor was sick of his last illness at 
 the date of the deed ; that he did not die by accident, 
 nor by any other disease. The law of deathbed 
 may be overruled if the granter survive sixty days 
 after the date of the deed, or afterwards went to 
 kirk or market unsupported. Many nice questions 
 have arisen as to what is " kirk," what is " market," 
 and what is " unsupported ;" but these do not pro- 
 perly come within the scope of the present treatise. 
 There is no such a principle in any other system of 
 law, and it is a subject well worthy of consideration, 
 and of deep interest to the community, whether the 
 law of deathbed should longer continue a principle 
 of our law, when the cause of it has long ceased 
 to exist. It is scarcely possible to imagine any- 
 thing more cruel than to deprive a disponee of the 
 right of property conveyed to him by some near 
 relative for the reason that this relative, although 
 ill of disease, yet perfectly sane in mind, had died 
 
within sixty days of the date of the deed. Many 
 cases of great hardship have occurred hy the ope- 
 ration of such an arbitrary, unnatural, and inconsis- 
 tent rule, as contrasted with the freedom a testator 
 enjoys in bequeathing his moveable estate. It may 
 be said that such a rule entails no hardship, because 
 it is presumed every man knows it ; but, at the 
 same time, it is well known that there is much 
 apathy with people on this subject, seeing that it is 
 by no means an unfrequent case — a reduction on the 
 head of deathbed. And it very often happens, after 
 a reduction, that the succession opens to some very 
 remote heir, who probably is in the backwoods of 
 Canada, or in the gold-fields of Australia, where he 
 cannot be found. 
 
 On the other hand, a testament can be made at 
 any time, even at the last moments of existence, or 
 as it is termed, in articulo mortis ; and it requires 
 no particular form of words. These words, " I 
 hereby leave and bequeath to A B all my moveable 
 or personal estate," are sufScient of themselves to 
 bequeath all moveable estate, provided the writing 
 be holograph, or attested in legal form by witnesses. 
 Where the testator cannot write, a notary, or the 
 parish minister, with two witnesses, are necessary 
 to attest the wiU ; and they must see and hear the 
 testator give authority to the notary or the mi- 
 nister. 
 
 As a person's domicile affects the operation of his 
 wiU, it is necessary to enquire what is a person's 
 domicile. As to children, their domicile is that of 
 the father until majority or marriage, and the wife's 
 
that of the husband. The place of residence is 
 prima facie the domicile, provided there has been 
 shown an intention of remaining, which will be 
 proved by the adoption of a permanent residence, 
 procuring a situation, entering on business, or form- 
 ing connections. If the residence is partly at two 
 places, one a place of business, and the other a 
 place where the wife and family reside, the domicile 
 is at the latter place. See Paterson's E. and S. L., 
 p. 446 ; and the recent case of Donaldson or Max- 
 well V. M'Olure, 7th March 1860. 
 
 Hence the rule, that when a person dies his will 
 is valid or invalid according to the law of his domi- 
 cile at his death, and the Court in which any ques- 
 tion arises will follow the rules of the law of the 
 domicile. The law of domicile also decides the 
 legitimacy of the next of kin, so that, if the de- 
 ceased died domiciled in England, any child who 
 has been legitimated in Scotland by the subsequent 
 marriage of his parents, will be rejected in Eng- 
 land. 
 
 A different rule prevails as to heritable estate. 
 Land can only be conveyed according to the law of 
 the country where it is situated, lex loci rei sitce, as 
 it is technically called. It declares also the rule of 
 inheritance as to that land, and points out the per- 
 son entitled to succeed; Fenton v. Livingstone, 
 17th January 1861. This is the famous case of 
 succession to the estate of Bedlormie, in the county 
 of Linlithgow. 
 
DEFINITION OF A LEGACY. 
 
 A legacy is defined in " Bell's Principles" " as a 
 donation or bequest mortis ca-ma of a sum, or sub- 
 ject, or universitas, to be paid or delivered by the 
 executor of the mil out of the free moveable estate 
 of the deceased, after payment of debts, to a person 
 named, or plainly designated, called legatee or lega- 
 tary." Notwithstanding this clear definition, various 
 questions have arisen at different times as to the 
 distinction between a legacy and a donation mortis 
 causa, and between a legacy and an obligation de 
 prcesenti. In our law the distinctions do not appear 
 to be very well defined, but in other codes of juris- 
 prudence they are well understood. The proper 
 definition of a donation mxtrtis causa is a gift by one 
 in contemplation of death to become effectual in the 
 event of the death of the donor. But by some recent 
 decisions, which will be immediately referred to, an 
 irrevocable obligation may be constituted in certain 
 circumstances. By the Roman law it was held to 
 be a donation mortis causa when a person made over 
 some thing during his lifetime to the donee, with 
 power to recall it at any time during his own life. 
 By the law of England, a donation mm-tis causa is 
 constituted under the following conditions, viz. : — 
 (1) That the gift must be granted with a view to the 
 donor's death ; (2) it must be under the condition 
 to take effect only on the death of the donor from 
 his existing disease; and (3) there must be a 
 delivery of the subject of donation. Among the 
 
8 
 
 first decisions of our Court on this subject was that 
 of Mitchell v. Wright, 21st November 1720, M., 
 8082, where the Court held that a donation Tnoriia 
 causa differed from a legacy; in so far as it is done 
 deprcesenti, though the effect of it is suspended till 
 the death of the donor ; and where delivery has taken 
 place it is irrecoverable. This decision appears to 
 be affirmed by the subsequent one in the case of 
 Duguid V. Caddel's Trustees, 29th June 1831. In 
 this case a lady having executed and delivered a 
 document, by which she gratuitously bound and 
 obliged her heirs, executors and successors, to pay 
 an annuity after death, the Court held that this was 
 an irrevocable and effectual obligation. The prin- 
 ciple of these decisions appears to be, that where a 
 document granting a donation merit's cawsa has been 
 delivered, an irrevocable obligation is thereby con- 
 stituted ; but, unfortunately, this doctrine appears 
 again to be disturbed by a subsequent decision in 
 the case of Gordon and others ». Angus and others, 
 3d February 1859,. in which it was found that 
 certain documents, of a testamentary nature, 
 although delivered, were ineffectual. The whole 
 Court was consulted, and this subject received fuU 
 discussion, as well as the right of a wife to grant an 
 obligation during the lifetime of her husband. The 
 circumstances out of which the question arose are 
 these : — Mrs Milne, a married lady, residing in Aber- 
 deen, addressed and delivered to Captain Gordon, 
 during the lifetime of her husband, a letter, stating 
 that, " as a return for many kind attentions shown 
 me, on presenting this letter, after the death of Mr 
 
Milne and myself, that you shaU be entitled to a 
 couple of himder pond at the first term after our 
 death ; and if I shaU survive Mr Milne, upon pre- 
 senting this, you shall he entitled to demand four 
 hunder pond YD. place of two." This was enclosed 
 in another letter, of same date, in which she 
 said, " that the few hunder ponds is a mark of my 
 sincere regard for yourself, and that it shaU be a 
 preferable debt to every other." Captain Gordon 
 survived the husband, but predeceased the wife ; 
 and, in an action at the instance of his executorg 
 against Mrs Milne's trustees, it was held that the 
 letters did not constitute an effectual obligation so 
 as to transmit to Captain Gordon's heirs. The ma- 
 jority were much divided in opinion, although they 
 held the letters ineffectual. Some of their Lord- 
 ships were of Opinion that they were of a testamen- 
 tary nature, and, although delivered, they were not 
 effectual to heirs. Others held that they consti- 
 tuted a donation mortis causa, but personal to the 
 donee ; and some others, that they constituted an 
 obligation de prcesenti, but null, being granted by a 
 married woman. The most of the argument turned 
 on this point, and was considered one of great diffi- 
 culty>--^ laid down by our institutional writers, 
 the genera3"ruj.e was, that a married woman's obli- 
 gation is null ; but there is a recognized exception, 
 that she could bind herself for a sum of money, 
 in the form of a deed infer vivos, the payment of 
 which being suspended tiU after the husband's 
 death. This exception appears to have been founded 
 on the case of Colquhoun v. Lady Eoseburn's Exe- 
 
10 
 
 cutors, 1720, Mor., 5793. But on examining tlie re- 
 ports of the case it was found to be extremely diffi^ 
 cult to ascertain the grounds of its decision, although 
 for more than a century all our institutional writers 
 had laid it down, upon its authority, as trite law, 
 that a married woman could grant an obligation to 
 become effectual after her husband's death. It was 
 maintained, in the discussion, that this decision 
 could therefore be of no authority, being founded 
 upon an erroneous report. But it was well observed 
 by one of their Lordships, that it would be ex- 
 tremely dangerous to our jurisprudence, if by any 
 such archaeological research, a maxim of our law, 
 after being acted upon for more than a century, 
 were to be overturned, because it had originated 
 through error. Lord Ivory, in delivering his opi- 
 nion on this point, referred to the apparent contra^ 
 diction, ia holding that a wife's person being so sunk 
 in that of the husband that her obhgation is null 
 during the marriage, but yet after its dissolution it 
 is effectual, which is quite opposed to the other rule, 
 that, whatever obhgation is null ab initio, cannot 
 afterwards be effectual. It may also be observed 
 that, although the letters were made and granted 
 during the hfetime of the husband, yet, as Mrs 
 Milne survived her husband, they were not struck 
 at by the Intestacy Act of 1855, which declares all 
 testamentary deeds granted by the wife nuU, in the 
 event of her predeceasing. 
 
11 
 
 WHO CAN GBANT A LEGACY. 
 
 Generally, aU persons who are capable of declar- 
 ing their intentions can grant a bequest or exe- 
 cute a testament; but there are several excep- 
 tions to this rule. A husband can only grant 
 legacies under burden of the legal claims of his 
 wife and children, namely, the jus relictce and legi- 
 tim, or hairns' part of gear, if these rights are 
 not expressly renounced or effectually superseded ; 
 but by the law of England a husband can dis- 
 pose of his moveable property without any hmita- 
 tion. Formerly, a wife could test upon her share 
 of the goods in communion ; but by the Act 18 Vict., 
 c. 23 (Intestacy Scotland Act), 1855, it was de- 
 clared, " that the next of kin, executors, or other 
 representatives of such wife, whether testate or intes- 
 tate shall have no right to any share of the goods in 
 communion, nor shall any legacy or bequest, or tes- 
 tamentary disposition thereof by such wife, affect or 
 attach to the said goods or any portion thereof." 
 She has still the power of testing upon any separate 
 estate belonging to her, from which the husband's 
 jus mariti has been expressly excluded, and there is 
 no restriction as to her power of testing as in the 
 case of the husband. A minor, without consent of 
 his curators, can make a testament ; and also a per- 
 son interdicted, without consent of his interdictors. 
 Even persons deaf and dumb (but not blind, deaf 
 and dumb) are not thereby incapacitated from test- 
 ing, if they have the use of reason, and if it appears 
 
12 
 
 they understand the nature, meaning and effect of 
 the deed. They have also in some cases been ad- 
 mitted as iustrumentary witnesses to deeds. A 
 blind person can also graat a testament ; Duff v. 
 Fife, H.L., 17th July 1823. At one time natural 
 children had not the power of testing, unless legiti- 
 mated per subsequens matrimonium, or not having 
 lawful issue, or possessing the power of testing by 
 the king's gift. However, this restraint was abo- 
 lished by the statute of 6 and 7 Will. IV., c. 22. A 
 pupil cannot validly execute a testament, being in 
 the eyes of the law nulla persona; nor idiots ; nor 
 madmen ; nor persons during a state of intoxication, 
 but it is a difficult question to prove how far a man's 
 reason may be affected in this state so as to incapaci- 
 tate him. In the case of madmen, where they have 
 been cognosced, their deed will be presumed nuU ; 
 but, if not cognosced, then their deed is presumed 
 valid, having been granted in a lucid moment, until 
 the contrary be proved. Traitors, felons, and out- 
 laws (during their outlawry) may be said to be in- 
 capacitated from making a will, inasmuch as their 
 estate is confiscated ; but generally they dispose of 
 it before sentence is pronounced. Testaments also 
 will be rendered invalid by being executed under 
 force, fear, or fraud. 
 
 HOW A LEGACY IS CONSTITUTED. 
 
 Legacies are generally bequeathed by a testament, 
 by which the testator regulates the disposal of his 
 
13 
 
 estate after his death, and appoints an executor for 
 that purpose. It is essential to the validity of all 
 testaments that the testator understand the nature, 
 meaning and effect of the deed, Watson v. Noble's 
 Trustees, 18th November 1825. And in all cases 
 of doubt, the rationality of the deed will form an 
 important element in considering the validity of 
 the deed. 
 
 A legacy may be constituted by a few simple 
 words, such as, " I hereby leave and bequeath to A 
 the sum of £100," either in a testament, or codicil, or 
 disposition mortis causa, or trust-settlement. It may 
 be constituted, iadependently of any of these deeds, 
 by a separate writing, provided it be holograph or 
 tested ; or even by an informal writing, if referred to 
 in a formal deed ; or verbally to the extent of £100 
 Scots (£8, 6s. 8d.). A testament was held effectual, 
 although invalid in the nomination of an executor 
 by erasure ; Kemp v. Ferguson, 2d March 1802, M., 
 16949. In a recent case, a mutual settlement be- 
 tween a husband and wife, in the handwriting of the 
 husband, was held effectual so far as regarded the 
 husband's estate ; M'Millan v. M'Millan, 28th No- 
 vember 1858. In this case the writing was upon the 
 fly-leaf of a Bible, in these words, " this agreement, 
 that the longest liver is to have all that remains 
 after payment of our debts." An informal wiU 
 may be homologated by the -parties interested in 
 the succession ; PoUock v. Pollock, 20th November 
 1849. The writing of a testament must not only 
 be probative but a complete act ; Munro v. Coutts, 
 7th July 1813. Holograph signed instructions to pre- 
 
14 
 
 pare a will are not effectual ; Staintons v. Stainton's 
 Trustees, ITth July 1828. A deed partially signed 
 kas been held invalid ; Hopkins v. Duke of Atliole, 
 December 1728. Likewise, a draft of a settlement 
 which has been approved of is not effectual ; Du- 
 guid V. Dundas, 8th February 1839. In a recent 
 case it was held that a wish expressed in writ- 
 ing was effectual ; Magistrates of Dundee, House 
 of Lords, 11th May 1858. Here the words, " I 
 wish to found an hospital," were sufficient to con- 
 stitute a bequest for that purpose. 
 
 A testament can be executed by one notary, or 
 the parish clergyman, and two witnesses, where the 
 party cannot write ; but, by an old statute, this ap- 
 pears to be under a limitation, according to the value 
 of the estate bequeathed. A question of this kind 
 arose in the case of Gellatly v. Macfarlane ; 1st Au- 
 gust 1843, 6 D., 1. A testament, bequeathing be- 
 tween two and three hundred pounds in money, was 
 executed by a notary and two witnesses ; the testator 
 being unable to write, the question arose, Was it 
 vaUdly executed by one notary and two witnesses ? 
 The Act 1572, c. 80, requires that aU deeds and ob- 
 ligations of great importance must be signed by 
 two notaries and four witnesses ; and, according 
 to Erskine, the deeds here referred to have been 
 declared by the decisions of the Court to be 
 of the value of £8, 6s. 8d. The- Lord Justice- 
 Clerk Hope, before whom the case depended, did 
 not think the point wholly fixed by the authorities, 
 and reserved it for after consideration; but the 
 action being compromised, it was not decided. It 
 
15 
 
 would be stretching a point too far to suppose 
 that a deed of the value of £8, 6s. 8d. of the present 
 day was a deed " of great importance " within the 
 meaning of the Act, and therefore null, because not 
 signed by two notaries and four witnesses. To hold 
 otherwise, it would not only be startling to the pro- 
 fession but dangerous to the interests of the com- 
 munity ; for, by the uniform practice throughout 
 the country, almost all testaments are signed by 
 one notary and two witnesses, without reference 
 to the value of the estate bequeathed. 
 
 Where the intention is clear, irregularities are 
 excused in the case of wills which would be fatal 
 to other deeds ; thus, a wiH was siistained 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; Trail v. Trail, 27th February 
 1805. But this decision is considered doubtful by 
 some lawyers. It was found that a holograph writ- 
 ing unsigned could not be given effect to ; Dunlop 
 V. Dunlop, 11th June 1839. A legacy is some- 
 times said to be constituted by endorsing a bill to 
 the intended legatee by the intervention of a third 
 party, as in the case of Adam v. Johnstone, 2d 
 December 1782, where the donor granted bills to 
 two third parties, who, in consideration thereof, 
 granted their bill to the intended legatee. Legacies 
 granted in this manner are not properly legacies, 
 but donations inter vivos, the right passing to the 
 donee immediately on delivery of the biU. By some 
 old decisions it has been held incompetent, however, 
 to constitute a legacy or donation mortis causa by 
 
16 
 
 granting a bill in favour of the intended legatee ; 
 Wright V. Wright, 11th February 1761, M., 8088 ; 
 Weir u.Parkhill, 7th January 1737, M., 1413 ; Dowie 
 V. Millie, 2d February 1786, M., 8107. In this last 
 case it was held that a bill, which was admittedly 
 intended as a legacy, was invalid. But by our 
 modern writers it is considered doubtful if these 
 decisions would now be followed as a precedent. 
 
 PERSON TO WHOM LEGACY MAT BE GRANTED. 
 
 Generally speaking, all who can bequeath a legacy 
 can receive one. Where the legatee is a pupil, his 
 father, as administrator-at-law, is entitled to receive 
 payment of it. And when a legacy is left to a bank- 
 rupt, his trustee is entitled to claim it, unless it be 
 expressly declared alimentary. Even a witness to 
 the deed may take a legacy under it, but only where 
 the legacy is of a trifling nature ; Ingram v. Stein- 
 son, 22d January 1801. 
 
 Although a legacy is granted to a person under 
 a wrong name, yet, if it can be shown that he is 
 the person intended to receive it, it will be effec- 
 tual; Keiller, 16th June 1826, 4 S. D., 724. It 
 was also decided, in another case, where a testator 
 had bequeathed by a codicil, a sum, to be under the 
 management of the magistrates and ministers of the 
 Established Church, it was held that the magistrates 
 and ministers referred to were those of Glasgow, 
 where he resided and died, and that the bequest was 
 not void on account of uncertainty ; Murdoch, 80th 
 
17 
 
 November 1827. In a recent case, where a legacy 
 was bequeathed to the " Scottish Missionary Society 
 of the Established Church," and alluded to after- 
 wards in the will as the legacy to the " Scottish 
 Missionary Society," it was claimed by the Scottish 
 Missionary Society, and by the Home Missionary 
 Committee of the Established Church; the Scot- 
 tish Missionary Society was found entitled to it ; 
 Haig, 19th February 1858. Legacies were found 
 not to be void in a case where a testator had be- 
 queathed legacies " to aU my creditors of whatever 
 sums shall be necessary for making full payment of 
 the balances remaining due to them, as the same 
 shall be set forth in a list which I intend to leave," 
 although the list was not made out ; Sprot v. Pen- 
 nycook, 12th June 1855, 17 D., 840. A legacy to 
 certain persons for distribution among the testator's 
 nearest friends and relations is valid ; Wharrie, 16th 
 July 1760. A bequest to the lawful heirs of " E. 
 P.," held to mean those alive at the death of the 
 testator ; Pearson, 28th June 1825. Also, a legacy 
 to the heirs or successors of A B, means his heirs 
 or executors-at-law, and not heirs nominated by 
 him ; Blair, 16th November 1849. In England it 
 has iDeen held that a legacy " to my nephews and 
 neices on both sides," included those of the wife of 
 the testator, who was married. Where a sum is 
 bequeathed to each of the children of a marriage, 
 this is sufficient to identify the persons intended ; 
 Boyle, 28th February 1815, Ear. Hume, 274. In a 
 recent case, where the destination was to a father 
 in liferent, and his children ia fee, an opinion 
 
18 
 
 was expressed, that this included children born 
 and to be born ; Ferguson's Trustees v. Hamilton, 
 July 1860. It is a principle, both in the civil law 
 and that of Scotland, that a child in 'utero matris 
 would be included in such a description, but this 
 appears to be opposed to the well-known rule, that 
 a child must be heard to cry before it is allowed 
 by our law to be a living child. A bequest to the 
 poor in a parish includes both able bodied and legal 
 poor ; Liddle, 14th July 1854. Where the name of 
 a legatee was omitted, through the mistake of the 
 writer, the Court allowed a proof by witnesses to 
 prove that a particular memorandum, alleged to 
 contain it, had been taken down from the testator's 
 dictation, and formed the only instructions for pre- 
 paring the testament ; Pollock, 27th February 1777, 
 M., 8098. Eut in the case of Blair v. Blair, IGth 
 November 1849, where it was alleged that a legacy 
 had been granted to the wrong person, by mistake 
 of the law agent, the Court refused to allow it to be 
 £orrected. Sometimes legacies are granted as to 
 members of families ^er capita sjoA per stripes — .the 
 former means individuals, and the latter families. 
 When no such words are used it becomes a question 
 of intention. As, for instance, a legacy to the child- 
 ren of the testator's sisters, whom failing, their 
 descendants, has been held to impart a division by 
 famihes ; Thomson, 16th November 1814. But, on 
 the other hand, when the words " share and share 
 alike," or " in equal portions," it is. per capita; and 
 where a bequest is to certain persons by name, and 
 the children of another, it is divisible per capita. 
 
19 
 
 Legacies are generally divided into three kinds, 
 viz., universal, general, and special ; but there are 
 some other forms of legacies which deserve notice 
 such as nuncupative, legatum liberationis and lega- 
 tum rei alienae. 
 
 UNIVBESAL LEGACY. 
 
 A Universal Legacy is a bequest of the testator's 
 whole moveable estate, under deduction of debts, 
 &c., and the person receiving it is called a univer- 
 sal legatee ; and when there are other legacies ap- 
 pointed to be paid, he is said to be a residuary lega- 
 tee. There are some peculiarities in granting a 
 legacy of this kind ; for, by a slight turn of expres- 
 sion, it may signify a legacy of a limited nature. 
 As, for instance, a legacy of one's " whole moveable 
 goods and gear," will not include cash, because a 
 particular kind of property is here mentioned, and 
 will only include all property of the particular kind 
 described; Fraser v. Smith, 9th July 1776, Mor., 
 2322. The same principle was applied in another 
 case, where the terms of the legacy were '' moveable 
 goods, gear and eifects ;" Earl of Fife -». Mackenzie, 
 i4th May 1795. In the case of M'Nabb v. Spittal, 
 30th May 1797, a person granted a disposition of a 
 house, with all the plenishing, household furniture, 
 and every articl-e within it, it was decided that 
 money and documents of debt was not comprehend- 
 ed in the description. A like decision was given in 
 the case of Dunbar's Trustees v. Dunbar, 1808, Hume, 
 
 B 2 
 
20 
 
 267 ; where the terms of the legacy were "all my plate 
 and horses and moveables whatever, and all pay and 
 arrears of pay." In a recent case, where the terms 
 were whole " other moveable estate," although com- 
 prehensive enough to carry aU moveable estate, yet 
 this expression was restricted in its meaning by its 
 being preceded by a particular enumeration ; Cars- 
 well, 9th February 1858. And in a stiU more re- 
 cent case, the word " cash" was held not to include 
 bills ; Jarvie v. Erskine, 5th July 1860. These 
 cases occur where testators make their own wills ; 
 and it is a matter for consideration whether the 
 Court should allow a more liberal interpretation, 
 because it is not to be presumed that they are 
 aware of these technical and nice distinctions. 
 
 GENERAL LEGACY. 
 
 A General Legacy is a bequest of a sum of money 
 of a certain amount, such as £100, but not any par- 
 ticular £100 ; or it may be of two oxen, or of so 
 many yards of blue cloth, not particularly specified 
 in either case. A general legatee has no jus in re, 
 and the legatee can only enforce payment or deli- 
 very of his legacy, by raising an action against the 
 executors in the usual form ; and it will be no de- 
 fence that the testator or executor has set apart 
 a subject of the same nature, but which has ceased 
 to exist. By the law of England, a legatee has no 
 right of action against the executor, unless for a 
 specific legacy, and can only bring the matter into 
 
21 
 
 a Court of Equity ; and where a legacy is granted to 
 a married "woman, the executor may decline to pay 
 it to the husband, unless he has made provision for 
 her. If the fund, after payment of debts and other 
 preferable claims, be deficient for full payment of 
 the legacies, they must suffer a proportional dimi- 
 nution. 
 
 SPECIAL LEGACY. 
 
 A Special Legacy is a legacy of a sum of money 
 or subject ' contained in a particular bond, bill or 
 voucher, or due by a particular person. A special 
 legatee appears to be in the same position as an 
 assignee, for he possesses a jus in re, and can raise an 
 action directly against the debtor or possessor of the 
 subject for payment or delivery ; to which action, 
 however, the executor must be called, in order to 
 state whether or not there are sufficient funds for 
 payment of the testator's debts ; if not sufficient, the 
 special legacy is liable. At the same time, a special 
 legacy has a preference to general legacies, so that, 
 in the event of a deficiency of funds to pay them, 
 the special legacy suffers no abatement. In the 
 case of Breadalbane's Trustees v. Duchess of Buck- 
 ingham, 26th May 1842, a bequest of the free an- 
 nual proceeds of certain estates was not held Uable 
 for other annuities, for which the testator had left 
 other funds of sufficient amount to Liquidate. But 
 where there is a bequest of the free annual proceeds 
 of the whole estate, then it is liable for other an- 
 
22 
 
 imities; Currie v. Threshie, 4th July 1846,8 D., 
 1021. A special legacy may be revoked, but this 
 is not to be presumed by a posterior general dispo- 
 sition and settlement ; Thomson v. Lyall, 18th 
 November 1836. If the subject out of which the 
 legacy is bequeathed perish, or become extinguish- 
 ed or lost, the legacy falls, unless provision be'made 
 for any of these contingencies ; as, for instance, 
 when a debt, specially bequeathed, has been paid to 
 the testator after granting the legacy ; or if the 
 debtor shall have become bankrupt ; or if the move- 
 ables have disappeared ; in all of these cases the 
 legacy will be completely vacated. In the case of 
 Pagan or Plomer v. Pagan, 26th July 1838, a be- 
 quest of £1000 was held to be extinguished, the 
 bond having been paid by the spontaneous act of 
 tlie debtor during the testator's life. A house sold 
 after being disponed, it was decided that the legatee 
 was. not entitled to the price ; Chalmers v. Chal- 
 mers, 19th November 1851. A special legacy wiU 
 fall by an heritable security being taken for the 
 debt. A special legacy wiU also become void where 
 it is bequeathed out of a certain subject, and that 
 subject be afterwards sold ; Paul v. Paul's Trustees^ 
 5th July 1821. 
 
 NUNCUPATIVE LEGACY. 
 
 A Nuncupative Legacy is a legacy granted ver- 
 bally, and! is only effectual to the amount of £100 
 Scots, or £8, 6s. 8d. sterling ; but if the legacy be 
 
23 
 
 more than this, it will be effectual if restricted to 
 this amount. It may be effectual also for more than 
 this sum if the executor has right to the residue, 
 and has promised to the testator to pay it, which 
 can be proved by a reference to his oath ; Hannah's 
 Legatees v. Guthrie, 17th June 1738. If the exe- 
 cutor, howcTer, has no right to the residue, it is in- 
 competent to refer to his oath as to verbal instruc- 
 tions, so as to overrule the instructions contained 
 in a written deed; Forsyth's Trustees v. M'Lean, 
 18th January 1854. In some countries verbal le- 
 gacies are effectual for more than this sum, and will 
 be effectual in this country provided they are valid- 
 ly rmade. At one time nuncupative legacies to the 
 extent of £30 were valid in England, but now a 
 verbal legacy is null for any sum, unless made by 
 a soldier in actual service, or a sailor actually " at 
 sea ;" Paterson's C. E. S., p. 226. 
 
 LEGATUM LIBEEATIONIS. 
 
 Legatnm liberationis is a bequest to a debtor of the 
 discharge of his debt to the testator ; and this may 
 be done either generally or particularly, but the 
 latter i-s the better way. Because it has been held, 
 in the case of Graham, 22d June 1792, M., 8108, 
 where there was a general discharge in these words, 
 " a free discharge of everything they may owe him 
 at his death ;" this did not comprehend sums coming 
 into the hands of the legatee on account of the tes- 
 tator. A legacy to a debtor wiU he compensated 
 
24 
 
 in whole or in part by the debt, btit there must be 
 clear proof of the debt ; Keid, House of Lords, 6th 
 May 1825, 10 S., 1, 172. And in the case oT a tes- 
 tator granting a legacy to his creditor, if there be 
 any doubt as to his meaning, the presumption ap- 
 pears to be in favour of a donation. In the absence 
 therefore of a declaration that the legacy shall be im- 
 puted in payment of the debt, it would appear that 
 both are due; j^rrol, 5th July 1822, S. 1., (Ap.) 164. 
 In the case of a legatum liberationis, and the legatee 
 dying before the testator, what would be the effect? 
 Would the bequest be held as lapsed, and the lega- 
 tee's heirs bound to pay the debt ? It has been de- 
 cided in England that the bequest lapsed; and there- 
 fore the heirs bound to pay the debt. The same 
 rule might be applied in Scotland, where the be- 
 quest was not in favour of the heirs of the legatee. 
 
 LEGATUM KEI ALIEN^^ 
 
 Legatum rei aliencp, is a bequest of a subject not 
 belonging to the testator. There axe sonae curious 
 presumptions which prevail as to a legacy of this 
 kind. The legacy is effectual, as against the exe- 
 cutor, to the legatee, if the testator had been aware 
 that it did not belong to him, on the assumption 
 that it is inconsistent with the state of a dying per- 
 son, ludere in extremis. But if he had been aware 
 that it did belong to him, the opposite rule pre- 
 vails. 
 
25 
 
 LEGACY Oi' HEEITAGB. 
 
 A legacy of a sum of money heritably secured, is 
 effectual only where the heir of the testator who 
 succeeds to the heritable estate is executor under 
 the testament, on the doctrine of approbate and re- 
 probate ; that is to say, he cannot take any bene- 
 fit under it and at the same time refuse to imple- 
 ment the other obligations imposed upon him ; see 
 the case of Dundas v. Dundas, H. L., 22d Decem- 
 ber 1830, 4 W. S. 
 
 CONDITIONS AS TO VESTING OF LEGACIES. 
 
 Conditions as to the vesting of legacies may be 
 divided into two kinds, namely Implied, and Ex- 
 pressed : — 
 
 I. The Implied Conditions. 
 
 1. The Legatee must survive the Testator. — Where 
 a legacy is bequeathed to a person without mention 
 of his heirs, and if he predecease the testator, the 
 legacy lapses ; as, for example, in a case where a tes- 
 tator appointed his funds to be placed on security, 
 and the interest to be paid equally to his three sis- 
 ters, and after their deaths the principal effeiring 
 to their shares to be equally divided among their 
 children ; one of the sisters predeceased him, it was 
 held that the legacy of the predeceasing sister had 
 lapsed, and that the only son of one of the surviving 
 sisters was entitled to one-half of the principal ; Ku- 
 
26 
 
 therford, May 30th 1821, 1 S. D., 37. But, on the 
 other hand, if the legatee shall survive the testator, 
 the legacy is held as vested, and although he may 
 die hefore the legacy is actu&Uy paid to him, it will 
 go to his heirs, or be carried by any mortis catisa 
 deed which he may execute. It vests in him from 
 the moment of the testator's death ; or, as it is gen- 
 erally expressed, a morie testatoris. And although 
 the legacy may be granted to assignees, it wiU be 
 ineffectual if he shall have predeceased the testator. 
 In illustration of this point, the case of Henry, 
 19th February 1824, 2 S. D., 725, may be referred 
 to. A testatrix conveyed all her effects to trustees, 
 and directed them to pay the interest to her ne- 
 phew, and the principal to any one to whom he may 
 bequeath it, and failing his doing so, to his heirs-at^ 
 law. The nephew predeceased the testatrix, and 
 bequeathed everything in which he had a beneficial 
 interest to a third party. It was held, in a competi- 
 tion between him and the heirs-at-law of the nephew, 
 that he had never acquired a vested right, and could 
 not convey the bequest ; accordingly, his heirs-at- 
 law were preferred under the destination. Also, by 
 the law of England, a legacy to a person and his 
 assignees cannot be assigned until it become vested 
 in the legatee, by his surviving the testator. The 
 most recent decision in the law of Scotland upon 
 this point is that of Bell v. Cheape, 21st May 1845, 
 in which the whole Court was consulted. The as- 
 signees, in this case, were the trustees of the lega- 
 tee, who strongly pleaded that if the legacy was 
 effectual to the heirs by force of the destination, it 
 
27 
 
 was equally so to the assignees ; but although the 
 Court acknowledged the weight of this argTament, 
 it was unwilling to disturb the rule, that a legacj' 
 cannot' be assigned until vested, and accordingly 
 held the assignation ineffectual. But in the case of 
 a legacy bequeathed to a person, " and his heirs and 
 executors," the legacy does not lapse although he 
 should die before the testator, but will gO' to his 
 heirs or representatives on the predecease of the le- 
 gatee ; not by virtue of the law of succession, but 
 by the destination contained in the will ;, Inglis v. 
 Millar, 16th June 1760, F.G. ; Boston v. Hors- 
 burgh, 13th February 1781, F.G. Bonds of pro- 
 vision, although granted to a child and his heirs 
 or assignees, lapse by the child predeceasing the 
 grantor. The law of England is different, — where a 
 legacy is granted to " A and his heirs," which lapses 
 in the event of A predeceasing the testator, if the 
 intention is not otherwise expressed ; hut a legacy 
 to "A or his heirs," does not so lapse. In the 
 case where the testator and legatee are drowned in 
 the same ship, would the legacy be held as lapsed f 
 It has been decided in England that the legacy 
 lapsed unless the legatee's heirs were able to prove 
 that the testator was drowned first. Probably the 
 same rule would be followed in Scotland ; William's 
 Executors, p. 1084, et seq. 
 
 2. Conditio si testator sine liberis ■ decesserit. — 
 When a father bequeathes his estate to strangers, 
 and afterwards has children, the settlement will not 
 be effectual so as to exclude his lawful children. 
 
28 
 
 It was so found in a case where a party, after hav- 
 ing been twice married, without any prospect of a 
 family, executed a settlement of his estate, and in 
 about three years thereafter a daughter was born to 
 him. He died shortly afterwards, and, in an action 
 at the instance of the daughter, the settlement was 
 set aside, on the ground that it was granted under 
 the condition si testator sine liberis decesserit ; Ool- 
 quhoun v. Campbell, 5th June 1829. But, at the 
 same time, this is not held as an absolute condition, 
 but merely a presumption, and will be overruled by 
 declared or presumed intention. The presumption, 
 therefore, of its receiving effect will depend in a 
 great measure on the value of the legacy or bequest, 
 in comparison with the whole estate of the deceas- 
 ed, and also on the length of time which may have 
 intervened between the birth of the first child and 
 the testator's death. For this reason, that a father 
 dying, leaving a widow and children, after satisfy- 
 ing their legal claims, has power to dispose of the 
 third, or dead's part, to any one to whom he may 
 bequeath it. And the presumption is, that the tes- 
 tator means to disinherit his children, when he al- 
 lows a considerable time to elapse before altering 
 his will after children being born ; Yule v. Yule, 
 20th December 1768, M., 6, 400. If a lawful child, 
 believed to be dead, shall afterwards cast up ; or if 
 an illegitimate child legitimated by marriage with 
 the mother, the presumption would apply ; Bell's 
 Principle, § 1777. 
 
 3. Si institutus sine liberis decesserit. — When a 
 
29 
 
 father bequeathes a legacy to a child, without men- 
 tion of that child's heirs, and if the child die leav- 
 ing issue, they will be entitled to the legacy, even 
 although it may be destined to the survivors or sur- 
 vivor of those children. There is a very good illus- 
 tration of this rule in the case of Eohertson v. Ma- 
 gistrates of Montrose, 21st November 1735, Kilk., 
 p. 455. The magistrates had borrowed a sum of 
 money, and granted a bond to the lender and his 
 wife in liferent, and to their four children nomi- 
 natim in fee, declaring, that in the case of the de- 
 cease of any of the children, his share should ac- 
 cresce to the survivor. The parents and three of 
 the children having died, the fourth claimed under 
 the bond payment of the whole sum. Fourteen 
 years thereafter, a son of one of the substitutes ap- 
 peared and demanded payment from the granters 
 of the bond, and although the defenders strongly 
 pleaded that the four children were substituted 
 nominatim to one another, without any mention of 
 heirs, and that they were bound to pay to the sur- 
 vivor, the Court found the pursuer entitled to his 
 father's share of the bond. A hke decision was 
 given in the cases, M'Kenzie v. The Legatees of 
 Holt, 2d February 1781 ; Eoughhead v. Eainy, 14th 
 February 1794, F.G. But this condition is also a 
 presumption, and wiU be overruled by declared or by 
 evidence of contrary intention. This was so decided 
 in a case where the testator bequeathed his estate to 
 aU his nephews and neices of his brother "William, 
 and of his deceased sisters Margaret and Mary, in 
 liferent, and to their children in fee, " and in case of 
 
30 
 
 any of my said nephews or neices shall have prede- 
 ceased me leaving children, I declare that said child- 
 ren shall have right equally among them to an equal 
 share of my means and estate, in the same manner as 
 if their parents had been alive at my death, and had 
 afterwards died." A neice, daughter of one of his 
 sisters, died many years before the date of the set- 
 tlement, leaving a son and a daughter, to whom 
 special legacies were bequeathed ; it was held that 
 they were not entitled to a share of the residue ; 
 Sturrock v. Binny, 21st July 1843. Here the 
 presumption was excluded, from the fact that th* 
 parent of the children died many years before the 
 date of the settlement, and that special legacies 
 were bequeathed to them. The presumption will 
 not be excluded, however, from the mere simple 
 fact of the institute having children alive at the 
 date of the testator's settlement, and althougjk no 
 reference be made to them; Dixon v. Brown, H. 
 L., 9th February 1841, ,2 Eob. App., 1. It is ex- 
 cluded by a destination inconsistent with such a 
 presumption ; as, for example, where a testator di- 
 rected his trustees to give his daughter the Eferent of 
 a tenement of land, and, on her death, to sell it and 
 divide the price among my lieirs then living. The 
 testator was survived by the liferentrix and two sons, 
 one of whom having predeceased her, it was held 
 that the surviving son had right to the whole price, 
 to the exclusion of the issue of the predeceaser, on 
 the ground that the term " heirs " could not be con- 
 strued as meaning son's children, so that the condi- 
 tion si sine liheris decesserit could not apply ; Black 
 
31 
 
 V. Valentine, 17th February 1844, S. D., 689. It 
 has also to be remarked, that the condition si sine 
 liberis deoesserit applies equally, whether the substi- 
 tution occurs in a provision by a father -or gramd- 
 father of a child, whether singly or as one of a class; 
 or where a bequest is granted to a class or family of 
 relations, whether in the direct or collateral hne, 
 with a substitution of the survivors. The children, 
 in this case, are supposed to be equally the objects 
 of the testator's regard as their parents, and are 
 preferred to the survivors of the immediately favour- 
 ed class for the shares of the parents ; but where 
 the provision is made to certain relatives as indi- 
 viduals, to the exclusion of individuals in the same 
 relationship, and not to the whole as a class, then 
 this excludes the presumption that the legatee's 
 children will succeed to the legacy under the con- 
 dition si sine liheris deoesserit. This was decided 
 in the case of Hamilton v. Hamilton, 7th February 
 1838, F.C., which contains all the authorities. 
 Here a testator, whose nearest relations were ne- 
 phews and neices, children of three sisters who pre- 
 deceased him, bequeathed legacies to some of those 
 children, and not to the whole of them. Two of 
 those children to whom legacies were left prede- 
 ceased the testator, leaving issue. It was found, in 
 a question between their issue and the next of kin, 
 that the legacies to the predeceasing children had 
 lapsed, and did not go to their issue, but went to 
 the heirs-at-law and nearest of kin of the testator. 
 Lord Medwyn, in giving his judgment in this case, 
 observed, that there were two exceptions to the rule 
 
32 
 
 of lapsing in our law : (1) If a bequest be made to a 
 whole family and not to certain specified relations, 
 and one of the legatees die leaving children, such 
 children wiU take the share of the predeceasing 
 parent; (2) If a legacy is left by a father to his 
 child. In a recent case the same principle was ap- 
 plied where a testatrix appointed her estate to be 
 divided equally among " the lawful children of her 
 sister," her nepheW, and her neice, each individual 
 receiving an equal part or share thereof ; and fail- 
 ing any of the said parties leaving lawful issue, the 
 said issue taking equally among them per stirpes 
 and not per capita the share which would have 
 belonged to their respective parents if in life. Two 
 of the children of the sister predeceased the tes- 
 tatrix, leaving lawful children, who were preferred 
 to their parents' share si sine liheris decesserit; but 
 here also they were entitled to it as conditional in- 
 stitutes ; Thomson's Trustees v. Eobb, 10th July 
 1851. 
 
 II. The Expressed Conditions. 
 
 1. Legacies payable at a certain or uncertain time 
 or event. — Where a legacy is appointed to be paid at a 
 term which will come whether the legatee live or die, 
 it will vest a morte testatoris, though the legatee die 
 before the term of payment ; Fowke v. Duncan, 1st 
 March 1770, F.C. ; see also Wallace v. Wallace, 
 28th January 1807, F.C. ; both affirmed on appeal. 
 In the latter case the legacy was bequeathed under 
 the declaration that it should be payable at the first 
 term of Whitsunday, &c., after the death of the 
 
33 
 
 longest liver of the testator and his spouse ; it was 
 held, therefore, that this referred to a certain day, 
 and the legacy vested from the testator's death. 
 See also the recent cases of Kilgour v. Kilgour, 
 18th February 1845', and Sterling v. Sir James 
 Baird's Trustees, 12th November 1851, where the 
 same doctrine was followed. But where the inten- 
 tion is otherwise expressed, it will be given effect 
 to, as in the case of Lawson, 24th June 1826, where 
 a legacy was left by a joint trust-deed by two 
 spouses, declaring, that in the event of the legatee 
 predeceasing the survivor, the legacy should belong 
 to the executors or nearest of kin. The legatee 
 survived one of the testators but predeceased the 
 other, it was found that the legacy fell to the nearest 
 in kin (affirmed June 20, 1827, 2 W.S., 625). In 
 some of the more simple cases occurring under the 
 testament, where a legacy is made payable at an un- 
 certain time, such as majority or marriage, the legacy 
 lapses on the death of the legatee before either of 
 these events arrives, because he may neither attain 
 majority nor marry, and hence the maxim of the civil 
 law is applied, dies incertus pro conditione hdbetur. 
 But there is a recognized distinction between this 
 and the case where a legacy is bequeathed, and the 
 term of payment merely postponed to majority or 
 marriage, with instructions to pay the interest dur- 
 ing minority. In the latter case there is no con- 
 dition, but a mere direction for regulating the term 
 of payment, and in many cases obviating the neces- 
 sity of appointing tutors and curators. And, in 
 order to show this distinction, it will be necessary 
 
 c 
 
34 
 
 to refer to a few cases. In the case of Bell v. Mason, 
 1st February 1749, a question of this kind occurred 
 in regard to the payment of a bond of provision 
 payable on a child attaining a certain age. A 
 father became bound in a contract with his daugh-^ 
 ter's husband to pay a stipulated sum to their child 
 on his attaining the age of sixteen years complete ; 
 and as this was to happen within a few days of the 
 term of Whitsunday 1747, the sum was therefore 
 made payable at this term. The child died before 
 the arrival of that term ; and the husband of the 
 daughter, having confirmed himself executor to his 
 child, assigned the bond. The assignee raised an 
 action for payment of the bond, but the assignation 
 was held to be ineffectual, the child having died 
 before the age of sixteen, which was a condition of 
 payment. In a previous case, Campbell v. Pollock, 
 7th December 1717, Karnes, vol. i, p. 425, a bond 
 of provision by a father to his son, payable five 
 years after date, and which the son had assigned, 
 was effectual to the assignee although the son died 
 before the term of payment. But there is a clear 
 distinction between the two cases ; for in the former 
 case, reference having been made to the child's age, 
 the payment was made dependent upon that age 
 being attained ; and in the latter, the sum was 
 made payable at a certain though distant term, with- 
 out reference to the child's age. The following case 
 shows clearly the distinction where it was found that 
 a legacy had vested a morte testatoris, although it 
 was declared to be payable when the legatee attained 
 the age of sixteen years ; Burnet v. Forbes, 9th 
 
35 
 
 December 1783, F.O. The legacy was bequeathed 
 in these words : "To Arthur Burnet I leave and 
 bequeath Five hundred pounds, to be paid when he 
 arrives at sixteen years of age." The legatee died 
 when only eleven years of age, but he survived the 
 testator. His sisters, as his executors, raised an 
 action to have it declared that the legacy belonged 
 to them, as the legatee had survived the testator, 
 and that the term of payment here mentioned was 
 not an express condition of the legacy, but merely 
 for the purpose of regulating the payment of it, and 
 not to affect its existence as a legacy. The Court 
 found that the legacy had vested a morte testatoris, 
 and of course fell to be paid to his sisters. This 
 decision, it appears, had been considered of doubtful 
 authority ; for by subsequent decisions it was disre- 
 garded by the Court. On looking at the terms in 
 which the legacy was bequeathed, and also inten- 
 tion, there are good grounds for holding that the 
 decision is well founded. The first words are, " To 
 Arthur Burnet I leave and bequeath Five hundred 
 pounds," by which the legacy is effectually be- 
 queathed ; but then he adds, " to be paid when he 
 arrives at sixteen years of age," which could only 
 be intended for regulating the payment, and which 
 has the same effect as if tutors or curators had 
 been appointed. In a subsequent case a directly 
 contrary decision was given ; O'Mey v. M'Larty, 
 19th November 1788, F.C. Here a grandfather 
 having settled the sum of £600 upon his grandson, 
 payable at his majority or marriage, and he having 
 died before either majority or marriage, the pro- 
 
 c2 
 
36 
 
 vision lapsed. In another case, a legacy made pay- 
 able at the majority of the legatee lapsed by his 
 death before that period, even although the executor 
 of the testator had been authorised to pay it sooner if 
 he should think it proper ; Sempell v. SempeU, 15th 
 November 1792. These decisions, however, were 
 overruled, and the case of Burnet was followed in- 
 the subsequent one of Wood v. Burnet's Trustee, 2d 
 July 1813, Bar. Hume, page 271. Here a sum was 
 bequeathed, to be laid out on security for the lega^ 
 tee's behoof ; the interest to be paid to him, and the 
 capital to be transferred to his name, at the age of 
 twenty-one years. The legacy was found to have 
 vested, although the legatee died in minority ; and 
 since, the decisions of the Court may be said to have 
 been uniform. In a recent case, which bears a 
 strong resemblance to the cases Burnet v. Forbes 
 and Wood v. Burnet's Trustees before mentioned, 
 a similar decision was given. A legacy of £500 
 was bequeathed to a person, and, in the event of his 
 death, to B and 0, and the survivor, with interest 
 six months after the testator's death payable to 
 their guardians, and the principal to A on attain- 
 ing majority ; or, in the event of his decease, 
 to B, &c., or survivor, on attaining majority ; the 
 legacy was held to have vested in A, who survived 
 the testator, but died a pupil, and descended to his 
 next of kin ; Ealston v. Ealstons, 8th July 1842. 
 In Wilson v.. Wilson, 9th July 1842, 4 D., 1503, a 
 sum was bequeathed to two sons, with a declaration 
 that the interest should be paid to their mother 
 during their minority, and the principal to them- 
 
37 ! 
 
 selves only on attaining majority. TEe legacy was 
 held to vest, so that one of the sons, who died in 
 minority, validly bequeathed his share. In the case 
 of Cochrane v. Cochrane's Trustees, 29th November 
 1854, a like decision was pronounced, where a tes- 
 tator appointed his trustees to pay a sum of £150, 
 and a portion of his residue, to " John Cochrane, or 
 his heirs, six months after his decease, and when 
 the same is free from the liferent of my said spouse." 
 The Court held that the special legacy and the 
 share of residue vested in , John Cochrane, by his 
 survivance of the testator, and were transmissible 
 by his will although he predeceased the liferenter. 
 See also the case of Scot v. Scot, 12th July 1860. 
 According to these cases, it may safely be laid down 
 as a general rule, that where there is no express 
 condition that the legatee shall survive the term of 
 payment, but only a mere direction for regulating 
 the payment, the legacy will be held to have vested 
 a morte testatoris. As has already been mentioned, 
 a legacy to one in hferent and another in fee, with 
 directions to pay the interest to one during his hfe, 
 and the capital to another on the death of the Hfe- 
 renter, without qualifying words or ulterior desti- 
 nation, as in the two last cases of Wilson and CocJi- 
 rane mentioned before, the legacy belongs to the 
 fiar from the testator's death, because the substan- 
 tial right is held to be immediately conferred. The 
 creation of a trust does not necessarily imply that 
 the vesting is suspended ; but, at the same time, it 
 is necessary to keep in view the distinction where 
 there is a trust and where there is none, because, in 
 
38 
 
 case of any doubt, that would be a circumstance 
 which the Court would take into consideration. 
 This will be afterwards considered under the last 
 head of this branch of the subject. Our law under 
 this head appears to be the same as that of Eng- 
 land. There are, however, some very minute dis- 
 tinctions ; as, for instance, if the words " to be paid " 
 are left out, and the following terms used, such as, 
 "at" the age of twenty-one, "if," "when," "in 
 case," " or provided," — in all these cases, the legacy 
 is held uncertain. But, at the same time, intention 
 is allowed to control these terms. — See William's 
 Executors, ut supra. 
 
 Id, Legacies granted under specific conditions.^ 
 Conditions, under which legacies may be granted, 
 must be implemented, if they are possible, and not 
 contra bancs mores. When a legacy is granted un- 
 der an impossible condition, it will be held as pro 
 non scripto, and the legacy payable as if no condi- 
 tion had been made. Legacies or provisions grant- 
 ed with restrictions as to marriage are generally 
 looked upon with disfavour by the Court ; and, in 
 some cases, these conditions have been held as cort- 
 tra honos mores. There are numerous cases on this 
 subject, which are here quoted for reference, viz. : — 
 M'Kenzie v. The Creditors of M'Kinmonty, 5th 
 June 1750, Kilk., page 145 ; Graham v. Stevenson, 
 9th February 1794, F.C.; Hay v. Wood, 27th Feb- 
 ruary 1781, M., 2982 ; Douglas v. Douglas, H.L., 7th 
 February 1792 ; Eeid v. Coates, 5th March 1813, 
 F.C. ; Fraser v. Rose, 18th July 1849, 11 D., 1466; 
 
39 
 
 and Wellwood's Trustees v. Boswell, 21st June 1851, 
 13 D., 1211. In the case of Douglas v. Douglas's 
 Trustees, the condition was, that if the testator's 
 daughter had already married a certain person, she 
 was not to receiye any benefit under his settle- 
 ment. The Court found this condition ineffec- 
 tual; but the House of Lords, however, reversed 
 this decision, and declared the condition effectual. 
 In the case of Hay, 27th February 1781, a condi- 
 tion, that if the daughter should marry without her 
 father's consent, a bond of provision should be null, 
 received effect. As also in the case of Fraser v. 
 Eose, 18th July 1849, where a provision was grant- 
 ed by a father to his cl^ild under the condition that 
 she should not reside with her mother, whose cha- 
 racter was unblemished, the condition was held con- 
 tra honos mores. But in the case of Eeid v. Coates, 
 3d March 1813, where an uncle had made a settle- 
 ment in favour of a nephew, under the condition 
 that he should not reside with his mother, or any 
 of his relations, nor should she reside with him, it 
 was held effectual by the Court, because it was 
 granted by a party under no legal obligation. The 
 Court has gone still further, and have held condi- 
 tions, under restraint of marriage, ineffectual, al- 
 though made by one other than the father ; as in 
 the case of Wellwood's Trustees v. Boswell, 21st 
 June 1851, as above. Here a testator made over 
 his estates to trustees, with directions to settle them 
 upon his granddaughter, and her heirs whomsoever; 
 whom failing, upon A, her mother, who was the 
 daughter of the testator ; but under the declaration 
 
40 
 
 that, in the event of tlie granddaughter " marrying 
 without the approbation " of the trustees " first had 
 and obtained," " then, and in that case, her inter- 
 est in the said lands shall immediately cease and 
 determine." The granddaughter having married 
 without the consent of the trustees first had and 
 obtained, they raised an action of multiplepoind* 
 ing to have it declared to whom the estate be- 
 longed ; and, after some procedure, they lodged a 
 minute consenting to the marriage, which the 
 Court held sufficient, and accordingly preferred 
 the claim of the granddaughter. It does not ap- 
 pear from the report that the mother contested the 
 daughter's claim. This decision shows very for- 
 cibly the extreme disfavour with which the Court 
 of Session looks upon such conditions ^ but con- 
 sidering it in a strictly legal sense, it does not 
 appear to be weU founded, and that for the follow- 
 ing reasons, viz.: — (1) the testator was under no 
 legal obligation to grant the provision, as in the 
 case of a father ; (2) seeing the forfeiture was un- 
 doubtedly incurred, it could not be afterwards ob- 
 viated by the consent of the trustees after the mar- 
 riage, which was beyond their powers ; and it may 
 be doubted how far the Court had right to interpone 
 its authority to the minute ; (3) there being a des- 
 tination over in the event of a forfeiture, the right 
 of a third party was involved, which the Court was 
 bound to protect ; and (4) considering that the 
 House of Lords reversed the decision of the Court 
 of Session in the case of Douglas, already men- 
 tioned, and that the law of England recognizes 
 
41 
 
 these conditions, it is probable that that tribunal 
 would not have sanctioned the decision in the case 
 under discussion. 
 
 In regard to conditions as to restraint of marriage, 
 the Courts of Scotland have adopted the civil law, 
 which held all such conditions illegal ; hut it may- 
 be a question, worthy of the consideration of law- 
 yers, whether conditions, dictated by prudential 
 motives, and not unnatural or unreasonable, might 
 be allowed effect. In England such conditions are 
 held effectual " which do not directly or indirectly 
 import an absolute injunction to celibacy." As, for 
 instance, conditions restraining marriage under 
 twenty-one years of age, without consent of exe- 
 cutors or guardians, or requiring or prohibiting 
 marriage with particular persons, are vahd and le- 
 gal conditions. And where a legacy is bequeathed 
 to a person until marriage, then in that event to 
 another, this is held as a valid hmitation, and not 
 an absolute condition. These conditions, however, 
 are held to be in terrorem when there is no desti- 
 nation over ; but where there is a destination, they 
 are not held to be in terrorem, or at least the Court 
 is bound to protect the interest of a third party. It 
 is likewise held by the English Courts that the con- 
 sent must first be obtained, and it is not valid after- 
 wards. General or implied consent, however, is 
 admitted, according to the rule, qui tacet satis lo- 
 quitur ; WiUiams' Executors, vol. 2, p. 1147. 
 
 There are other conditions worthy of conside- 
 ration. Thus, a legacy bequeathed to C, on the 
 failure of the children of B, remains in suspense 
 
42 
 
 ■while these children may exist; Carstairs, 21st 
 June 1762, Mor., 2992. A legacy given in con- 
 sideration of future services, or the acceptance 
 of an office, or provided the legatee return from 
 abroad to claim it within a certain time, depends 
 upon the performance or the event. As, for in- 
 stance, a testator bequeathed his effects to his 
 sisters and their heirs, and to certain other per- 
 sons if they should not claim within five years. 
 No claim having been made by the sisters or their 
 heirs, it was held that the fee did not vest in these 
 eventual legatees till after the expiration of five 
 years; Stevenson, 30th June 1826, 4 S.D., 776. 
 In another case, where a party by his trust-deed of 
 settlement bequeathed to his trustees £500 each, 
 as a mark of his friendship ; and the further sum of 
 £105, to purchase a hogshead of claret, as a recom- 
 pense for their trouble in the management of his af- 
 fairs, and as a farther mark of his affection. One 
 of the trustees having declined to act, he received 
 the £500, but not the £105 ; because the condition 
 under which it was granted was not implemented 
 by his refusing to take part in the management of 
 his affairs ; Henderson, 13th December 1825. There 
 is another case which may be referred to, and shows 
 how strictly the Court deals with conditions under 
 which legacies may be granted. Trustees wfere di- 
 rected, " in the event of their considering it proper," 
 to pay the testator's neice a legacy of £1000, at 
 such times and in such payments as they, in their 
 discretion, may think expedient." The legatee sur- 
 vived the testator, but died before the trustees 
 
43 
 
 paid the legacy, or made any entry in their mi- 
 nutes binding themselves to pay it. It was held, 
 therefore, that the legacy had lapsed, even although 
 the trustees had, by their acts, showed an intention 
 to pay it; Burnsides, 10th June 1829, 7 S.D., 735. 
 The case of Eoberton, 22d January 1833, affords 
 another striking example of legacies granted with 
 conditions. A legacy was bequeathed to one in 
 the event of their being two children of certain 
 parents alive. The second child was born ; but al- 
 though it was born alive, and continued to breathe 
 for some time, it was held not relevant to infer that 
 the child was a living child, it being admitted that 
 it had not been heard to cry ; and, consequently, the 
 legacy was not due. There are certain contracts 
 which are null by statute, and some which will not 
 be given effect to ; and this is applicable to legacies. _ 
 A question of this kind occurred in regard to the 
 payment of a legacy which was bequeathed to "the 
 General Unitarian Baptist Assembly," to endow a 
 church and support a preacher of that persuasion; 
 and for the annual delivery of a sermon " On the 
 Unity of the Divine nature in the person of the 
 Father only." Payment of this legacy was resisted, 
 on the ground that it was contrary to the religion 
 of the State ; it was, however, found effectual ; Ge^ 
 neral Assembly of Baptist Churches v. Taylor, 17th 
 June 1841. But Sheriff Barclay, in his " Digest," 
 2d edition, page 577, mentions a case where a 
 legacy, for the best essay on Natural Theology, 
 proving it to constitute a true, perfect, and philoso- 
 phical system of universal religion, was. set aside 
 as inconsistent with Christianity. 
 
44 
 
 3c?, Vesting of legacies or provisions mortis causa, 
 under the trust-deed. — The trust-deed has nowalmost 
 superseded all other testamentary deeds ; and the 
 vesting of legacies and provisions, which are some- 
 times bequeathed under complicated and ambiguous 
 destinations, comes to be a very important, and at 
 the same time, a very difficult question. By this 
 deed the truster generally conveys and dispones his 
 whole estate, heritable and moveable, for the " uses, 
 ends, and purposes " which he may think proper to 
 devise. So that the trustees acquire an absolute and 
 indefeasable right to the trust-estate ; or, in other 
 words, the trustees become vested in the fee of the 
 whole estate for the time being, subject always to 
 the " uses, ends, and purposes " of the trust. By a 
 fiduciary fee being thus created, the vesting of a 
 legacy or provision may be suspended to a certain 
 time after the testator's death, under certain condi- 
 tions or events ; as, for example, until a liferent ex- 
 pire, or until the entire number of a family, among 
 whom a bequest was to be divided, be ascertained 
 by the death of a parent, or a party to whom the 
 fee was ultimately destined reached a certain age 
 (being a condition) ; or where there are conditional 
 institutes called to the succession at the period of 
 division. It is therefore of the utmost importance to 
 know when a legacy vests ; for if it be held to have 
 vested at the time of the testator's death, then the 
 legatee, or his heirs as before explained, will be en- 
 titled to it, if he survive the testator. But if the 
 legacy be held to have vested at the period of di- 
 vision only, then, although the legatee survive the 
 
45 
 
 testator, and die before that period, the legacy will 
 not descend to his heirs, but to the next parties 
 called to the succession. It is thus between the le- 
 gatee's heirs and the party next called to the suc- 
 cession that the bone of contention lies. English 
 lawyers experience the same difficulty. Lord St 
 Leonards, in his " Hand-book of Property Law," 
 very strikingly warns his non-professional readers of 
 this stumbling-block, in these words : — " Avoid, and 
 particularly when you make your own will, condi- 
 tional gifts and devises over in particular events. . 
 It is the folly of most testators to contemplate a 
 great many events for which they too often inade- 
 quately provide." One great difficulty experienced 
 in investigating this subject is the many conflicting 
 decisions to be met with. And this is the root of 
 the evil ; for so long as there are conflicting deci- 
 sions there can be no settled principles of law ; and 
 in this state of matters litigation must increase. 
 One source of conflicting decisions may be said to 
 be presumed intention ; which appears to be the 
 guiding principle in many decisions of vesting cases. 
 Presumed intention is just another term for conjec- 
 ture ; for where a testator has expressed himself in 
 ambiguous language, it is difficult to know what 
 were his intentions, and to attempt to do so by 
 means of -conjecture, is like floundering in a quag- 
 mire. No doubt it is necessary, in destinations 
 where the terms are ambiguous or obscure, or seem- 
 ingly contrary, to have recourse to presumed inten- 
 tion; but it is doubtful how far this is right, when 
 it is allowed to overrule the declared intention of 
 
46 
 
 the testator. This has occurred more than once, as 
 ■will he seen from the cases to be afterwards quoted. 
 Where the settlement has been prepared by a law 
 agent, it ought surely to bear a legal construction. 
 Another source of conflicting decisions may be 
 traced to the decisions of both the Divisions of the 
 Inner House, proceeding on different principles. 
 On examination, it will be found that the First Di- 
 vision has, almost invariably, followed what prece- 
 dents were established ; while, on the other hand, 
 at least during the time the Lord Justice-Clerk 
 Hope sat on the bench, the Second Division consi- 
 dered vesting as one of intention. There is Kttle 
 wonder, therefore, that trustees rush into Court 
 rather than run any risk themselves ; for it is diffi- 
 cult now to say, however clear the terms of the 
 deed may be expressed, what wiU be the result of 
 a judicial interpretation. 
 
 At the outset there are here quoted some valuable 
 maxims, which are well worthy of consideration, 
 laid down by Lord Jeffrey, and which appears -to 
 have been sanctioned by the First Division, but not 
 approved of by the Second. His Lordship re- 
 marked, in deciding the case of Brockie v. March- 
 banks, February 1834, " that it was not always to 
 be presumed that the vesting of a legacy was sus- 
 pended because of a trust ; that wherever the fee 
 is finally destined (on the expiration of the liferent) 
 to a certain individual, or to a single definite class 
 or description of persons, without any ulterior pro- 
 vision or destination whatever, the right wiU vest 
 from the death of the testator exactly as if there 
 
47 
 
 had been no trust ; but that, where the destination 
 is to a succession of persons beyond those first 
 named as fiars, the right, if there be no specialty, 
 will not vest in any of them, but remain in the 
 trustees till it appears, on the termination of the 
 liferent, to which of them it truly belongs." This 
 appears also to be the rule adopted by the English 
 Courts in dealing with cases of vesting, viz., that 
 wherever any are substituted to the fiar, the legacy 
 vests in him only at the term of payment ; and that 
 wherever there is no destination over, the legacy 
 vests a morte testatoris. 
 
 The following are some of the most important 
 cases where the destinations have been held sus- 
 pensive of vesting. In the case of Burnsides, 10th 
 June 1829, the legacy was bequeathed with a dis- 
 cretionary power to pay it, which was held suspen- 
 sive of vesting. Where also a testator bequeathed 
 certain sums laid out for answering certain annui- 
 ties to be paid to his heir of entail who should be in 
 possession on the death of the annuitants, this was 
 held suspensive of vesting ; Davidson, 13th Febru- 
 ary 1828, F.C. Or where the legacy is to belong 
 to the intended fiar only if he shall be in life at the 
 time of the annuitants death, words which neces- 
 sarily imply an intention that the bequest shall not 
 sooner be at his disposal ; Leitch's Trustees, 2d 
 June 1826 ; affirmed, W.S., 3, 366. Or where the 
 bequest is made subject to conditions that may 
 alter the destination of part of the pj-incipal sum 
 prior to the term of payment, and thus affect the 
 amount to be divisable among a class of legatees ; 
 
48 
 
 Porterfield's Trustees, 16tli December 1836, H.L., 
 July 1839, S. & M'L. The fee will be suspended 
 when there is a destination to lawful children pro- 
 created and to be procre'^ted of the liferenter ; Mow- 
 bray, 9th July 1834, P.O. ; affirmed, S. & M'L., 2, 
 305. Here the destination was, " and to the trus- 
 tees themselves in fee, as trustees for the children 
 of his said daughter Jean, of her present or any sub- 
 sequent marriage, EQUALLY among them, and failing 
 of children, to and for behoof of the said Jean's other 
 heirs or assignees." Here there is a destination to 
 a particular class of children unnamed — ^the child- 
 ren of his said daughter Jean, of her present or any 
 subsequent marriage. The terms of this destinar 
 tion were therefore clearly suspensive of vesting 
 until the death of the daughter, because, until 
 then, the whole children could not be ascertained. 
 To have held the fee to have vested a morte testatoris 
 would have been to exclude the sjpes successionis 
 of the children nascituri, in direct opposition to the 
 declared intention of the testator. The same prin- 
 ciple was followed in a subsequent case, when a tes- 
 tator having bequeathed an annuity of £400 to his 
 neice, Mrs Janet Telfer, and appointed his trustees 
 to lay out the sum of £8000 on heritable security, 
 " taking the bond for the same payable to them- 
 selves in trust as fiduciaries," to apply the interest 
 thereof in payment of the annuity during the life- 
 time of the neice, " and after her decease to uphft 
 and divide the principal sum among her children 
 equally ; and in case any of them shall have pre- 
 deceased, leaving heirs of their bodies, the share 
 
49 
 
 of such deceased child or children to be paid to 
 their heirs." It was found, in an action of declara- 
 tor at the instance of the children against the trus- 
 tees and grandchildren, that the time for division 
 had not come, and thus, by implication, it was held 
 that the right to the principal sum did not vest in 
 the children of the neice a morte testatoris, or so 
 long as she was in life. The grandchildren, in de- 
 fending this action, pleaded that it ought to be 
 found that the trustees had a fiduciary fee for be- 
 hoof of those children of Janet Telfer who should 
 be alive at her death, and for the issue of those 
 children who may predecease her. And in the case 
 of Johnston v. Johnston, 9th June 1840, which im- 
 mediately followed that of Provan, a like decision 
 was given. The destination was " in case any of 
 the children of my said sisters EKzabeth and Jean 
 shall happen to die before their said parents, and 
 leaving children behind them, the respective shares 
 of those so predeceasing shall be equally divided 
 among the children." Here the deaths of the two 
 sisters were specially declared as the respective 
 periods of division, and the fee was destined to those 
 who survived the periods of division only, and the 
 issue of those children who predeceased were entitled 
 to their parents' share. Notwithstanding these de- 
 cisions, however, a directly contrary one was given 
 by the Second Division in the case of Matthew v. 
 Scott, 21st February 1844, 6 D., p. 718. Here a 
 father bequeathed £2000 to his daughter in liferent, 
 and to her children in fee, payable at their respec- 
 tive majorities or marriages, and it was further de- 
 
 D 
 
50 
 
 clared to be for behoof of children procreated and to 
 he procreated of her present or any subsequent mar- 
 riage. The destination is almost in the same terms 
 as that of Mowbray before referred to, but a directly 
 contrary decision was given, presumed intention 
 being here the ruling principle. The Lord Ordi- 
 nary held that no fee vested in the children a morte 
 testatoris, by virtue of the destination " to the 
 children procreated and to be procreated of her pre- 
 sent or any subsequent marriage." From the pre- 
 vious decisions of the Court, if any one principle 
 was established more than another as to vesting it 
 was this, that a destination to a class of children, 
 procreated and to be procreated, and who could not 
 be ascertained until the death of the liferenter, sus- 
 pends the vesting until that time. Although the 
 shares were here directed to be paid at the respec- 
 tive majorities or marriages of the children, yet 
 this could only refer to the time after the liferen- 
 ter's death, because the trustees could not pay away 
 the capital and defeat the liferent. At the same 
 time, it is difficult to understand how the trustees 
 could proceed to ascertain the shares of the children 
 until the death of the liferenter, in the case of those 
 dying before the liferenter. Would the number be 
 taken as at the death of the first child who died, 
 or the number as at the death of the liferenter ? In 
 thus bringing a practical test to bear upon this de- 
 cision, the rights of parties are brought into a state of 
 antagonism by holding the fee to have vested previous 
 to the death of the liferenter. In the case of Scott 
 and others v. Scott ; affirmed by the House of 
 Lords, 14th August 1850, 13 D., p. 13, where there 
 
51 
 
 was a destination over to a particular class of per- 
 sons as at the period of division, which was at the 
 death of the Uferenter, it was attempted to bring 
 the trust to an end sooner than that contemplated 
 by the testator ; but the Court of Session held this 
 incompetent ; and the decision was affirmed by the 
 House of Lords. In this case the testator directed 
 the whole of the annual proceeds' of his estate to be 
 paid to his brother, David Scott, burdened with the 
 interest of a legacy of £13,560, the fee of which 
 was destined to his children ; and at his death this 
 legacy was directed to be paid, and the residue of 
 his estate to his (the testator's) " own nearest rela- 
 tions." The brother having made arrangements 
 with his children for payment of their legacy, then 
 called upon the trustees to pay over the residue to 
 him as the only nearest relation. Lord Brougham, 
 in giving judgment in this case, laid it down as a 
 rule, " that if there be a gift to a class or an individual 
 by description which cannot be ascertained, for a 
 future time, those who may answer this description 
 at an earlier period cannot, by any arrangement 
 among themselves, exclude those who may become 
 entitled at such future time, and that, as in this case, 
 all parties who could be entitled, did not or could 
 not concur, tlie period of distribution could not be 
 anticipated." His Lordship farther remarked, as to 
 presumed intention, " that it was not a case upon 
 which the Court was at liberty to speculate upon 
 the intention of the maker of the deed ; that conjec- 
 tures of probabilities and inferences ought never 
 TO TAKE PLACE when the terms are distinct and po- 
 
 d2 
 
62 
 
 sitive arid incapable of more than one meaning." It 
 has been held, where there is a direction to accu- 
 mulate the residue during^ the lives of one or more 
 persons, that this has the effect of suspending the 
 vesting until the period of division ; Robertson v. 
 Richardson, 6th June 1843. Here the trustees 
 were directed to accumulate the residue during the 
 lives of two sisters, and for six months after the 
 death of the longest liver ; after which period the 
 residue was directed to be paid among the testator's 
 nephews and neices and grandneices. One of the 
 grandneices survived the testator, but died before 
 the period of division, it was held that no right had 
 vested in her. It was observed from the Bench, 
 that a direction to accumulate was, of all trust, pur- 
 poses, conspicuously expressive of the vesting being 
 suspended. And where there is a destination to one 
 person and to a particular class of heirs, not to the 
 natural heirs of the legatee but to a particular class 
 of heirs, this will have the effect of suspending the 
 vesting ; "Wright v. Fraser, 16th November 1843. 
 In this case the trustees were appointed to hold the 
 residue during the lives of two persons, and after 
 their respective deaths they were appointed to de- 
 nude " in favour of and to make payment of any 
 money in their hands, the one-half to my said 
 brother John, and the other half to the said Simon 
 Fraser and the children of the present marriage be- 
 tween him and my sister." This brother-in-law, 
 Simon Fraser, survived the testator, but predeceased 
 the survivor of the liferenters, leaving a trust-settle- 
 ment in favour of his eldest son, and conveying 
 
53 
 
 all his right and interest under the testator's settle- 
 ment. The Lord Ordinary (Ivory) held that no 
 right had vested in the brother-in-law, and conse- 
 quently the assignation executed by him was null ; 
 and the Inner House (Second Division) acquiesced 
 in his judgment ; but the Lord Justice-Clerk re- 
 gretted that the Lord Ordinary's judgment had pro- 
 ceeded so much on technical ground, for he consi- 
 dered it one of intention entirely, and wished the 
 interlocutor altered in this respect, but the other 
 judges did not concur with his Lordship's views. 
 The Lord Ordinary (Ivory) considered that this 
 was a destination over, seeing that it was not " to 
 his heirs," as in the case of BrocTcie, but to a parti- 
 cular class, namely, the children of the present 
 marriage ; a second marriage was here anticipated, 
 exfigura verborum. There were various views taken 
 as to the meaning of this destination, viz., that it 
 was either a joint bequest or a conveyance in suc- 
 cession. Where there is a destination to the 
 survivors of a hferenter, this has the effect of sus- 
 pending the vesting until the death of the Hferen- 
 ter, when it can only be known who are the sur- 
 vivors ; Newton v. Thomson, 27th January 1849, 
 11 D., 452. A like decision was given in the case 
 of Wood V. Cope, 8th March 1850, 12 D., 855. 
 Here the trustees were directed to pay the interest 
 of the residue of his estate to his sister, and after 
 her death to pay the residue equally between her 
 children ; and in the case of the death of either 
 without issue, then to the survivor. One of the 
 children having died, without issue, before the term 
 
54 
 
 of payment, it was found that the whole residue 
 went to one of the children who survived the life- 
 renter. See also the case of Eobertson's Trustee v. 
 Hillow and others, 13th July 1860. In the case of 
 Ferrie's Trustees v. Ferrie, 23d February 1849, 
 where there was a power conferred upon a person 
 inconsistent with a destination in favour' of other 
 parties, considerable doubt and perplexity were ex- 
 perienced. The testator made provision for his 
 widow, left certain legacies, and ordered his trus- 
 tees to deliver the residue to his brother ; whom 
 failing, to the child or children of his body, equally 
 among them at the first term occurring six months 
 after the death of the longest liver of him and his 
 spouse. This was clearly a conditional institution 
 in favour of the children, as at the period of divi- 
 sion ; but the brother was empowered to claim the 
 lands if he survived him (the testator), and wished 
 to possess them on getting security for the provi- 
 sions to the children. The brother claimed the 
 lands, but a beneficiary objected, and the Court 
 held that the claim was incompetent, and that the 
 distribution could not take place till the death of 
 the widow. Also, where there was a destination to 
 certain persons at a future time, subject to the con- 
 dition of attaining a certain age, this was held as 
 inconsistent with a fee vesting at the time of the 
 testator's death ; Stewart's Trustees, 17th July 
 1851. Thus, a party by his trust-disposition and 
 . settlement directed his trustees to convey his pro- 
 perty to his children, in equal shares, to the sons 
 on attaining the age of twenty-five years, and to the 
 
55 
 
 daughters on attaining majority. Some of tlie child- 
 ren predeceased the term at which the provisions 
 were payable, it was found that no right to the 
 shares provided to them vested in the predeceasing 
 children. But here it must be remarked, lest it 
 be thought that this decision is inconsistent with 
 others previously referred to when considering le- 
 gacies payable at an uncertain time, that the trus- 
 tees were directed to pay the shares " at the periods 
 and subject to the conditions following ;" and they 
 were further appointed, in the case of any of his 
 children dying before the term of payment of their 
 shares, and without leaving children, " to dispone, 
 convey, and make over my whole property, heri- 
 table and moveable, to my brother William, and 
 his heirs." Here then the attaining of certain ages 
 was thus made an express condition of vesting. 
 And in connection with this case, the one of 
 Groom's Trustees v. Adams, 30th November 1859, 
 may be consulted, where the surviving of the term 
 of actual payment was made a condition of vesting, 
 notwithstanding a declaration to the effect that the 
 legacies were to vest at a time previous to this in a 
 previous clause of the deed. The clause of the 
 destination was the following words : — " then the 
 share vested in such deceaser shall be paid to the 
 survivors or survivor," &c. In the case of Dickson, 
 18th February 1851, where there was a destination 
 of part of the residue to the survivors of annui- 
 tants, the fee was held to have vested a morte tes- 
 tatoris upon a construction of the whole deed. 
 This .decision, however, cannot be considered of any 
 
56 
 
 authority, since the contrary has been decided by 
 decisions previous and subsequent. 
 
 In the case of Clarke's Trustees, 12th Feb. 1851, 
 a power to vest was held to overrule a destination 
 to survivors, which is inconsistent with the vestin'g 
 a morte testatoris. Where a bequest is bequeathed 
 with a clause of return, to take effect on a certain 
 contingency, this will have the effect of suspending 
 the vesting ; Cunningham, 6th July 1858. In this 
 case trustees were appointed to dispone an estate 
 to the truster's eldest son, and to divide, at a time 
 mentioned, the residue between the younger child- 
 ren ; but under the condition, that if any of them 
 succeeded, by destination or otherwise, "to proper- 
 ty, exceeding in value by £3,000 such child's share, 
 that share was to be divided between the younger 
 children." It was held that the residue could not 
 vest a morte testatoris, except subject to the condi- 
 tion of forfeiture. Giving a party a power of dis- 
 posal, is also inconsistent with the vesting of a fee 
 to children ; Eobertson, 28th' May 1858. And also, 
 where there is a destination to a certain class exist- 
 ing as at the period when the fee is directed to be 
 conveyed, as at the death of a liferenter ; Boyle v. 
 The Earl of Glasgow's Trustees, 14th May 1858. 
 In this case a great deal of discussion took place, 
 the whole Court being consulted, and in which 
 there was considerable difference of opinion, the 
 majority overruling the opinions of the Lord Jus- 
 tice-Clerk Hope and Lord Cowan. The Earl of 
 Glasgow, by a trust-deed, conveyed a fund separate 
 from the rest of his estate, directing the liferent 
 
57 
 
 produce to be paid to his daughter and her husband, 
 and to the survivor of them ; and on the death of the 
 survivor, the capital was directed to be "made over 
 and accounted for to the child or children then ex- 
 isting of the marriage." There was no such child 
 or children then existing, the only issue of the mar- 
 riage was a daughter, who survived her father, but 
 predeceased her mother. This daughter, however, 
 executed a settlement, by which she bequeathed 
 the fee of the sum conveyed to the children of the 
 marriage to her uncle, the Honourable G. F. Boyle ; 
 and in an action at his instance against the trus- 
 tees, for payment of the sum so bequeathed, it was 
 found that no right had vested in the child or 
 children previous to the death of their mother. 
 On a fair legal construction of the terms of this 
 destination, the decision appears to be well founded, 
 and in accordance with the previous decisions of 
 the Court in destinations in similar terms. It must 
 be observed here, that this destination is different 
 from others where a legacy, payable on the death 
 of the survivor of two spouses or two persons vested, 
 although the legatee died before the term of pay- 
 ment ; for not only is the destination here to a class 
 but a reference to a contingency, viz., the children 
 then existing at the death of the survivor, — terms 
 clearly equivalent to a destination of survivorship 
 among the children. And, because there happened 
 to be only one child born of the marriage, it was 
 insufficient to hold that the fee vested in that child 
 previous to the death of the survivor. Supposing 
 there had been more than one child boi^n of the 
 
58 
 
 marriage, and one of them had died before the 
 period of division, would this child's executors 
 have been preferred to a share in a competition 
 with the surviving children ; or, in the words of the 
 destination, with the child or children then existing ? 
 At the present time, the decisions appear never to 
 have been more conflicting. One or two of these 
 may be worthy of consideration. The case of 
 Foulis V. Poulis, 2d February 1857, decided in the 
 Second Division, calls for some observations, as 
 being completely at variance with the case of Scott 
 and others v. Scott, H.L., 15th August 1850, pre- 
 viously quoted, in which it was decided that the 
 trust could not be brought to an end so as to defeat 
 the spes successionis of persons called to the succes- 
 sion at a certain future time. The trustees were 
 directed to hold the whole estate for payment of 
 the liferent to the widow ; and, on the termination 
 of the liferent, to dispone certain portions of the 
 estate to each of the truster's three sons nominatim, 
 and to divide the residue among them equally, 
 the share of any son predeceasing the truster and 
 his spouse to go to his issue ; or failing such issue, 
 to the surviving son or sons equally, or their issue. 
 The two eldest sons died, unmarried and intestate, 
 after the truster, but before the liferentrix ; and it 
 was held by the Court that the provisions vested a 
 morte testatoris, and the trustees were bound, on 
 the widow executing a renunciation of her liferent, 
 to convey the whole estate to the surviving son. 
 There are circumstances, however, connected with 
 this case, which may in some measure account for 
 
59 
 
 the decision. Two sons having died without child- 
 ren, and intestate, and, as it appears from the re- 
 port, the surviTing son entered into a private ar- 
 rangement with the liferentrix for giving up her 
 right ; and after having done so, he called upon the 
 trustees to denude in his favour, who, after having 
 raised a multiplepoinding, were found entitled to 
 convey to the surviving son, after providing for the 
 liferent of the widow. On a legal construction of 
 the terms of this destination, there was not only a 
 destination to the issue of a child predeceasing, hut 
 a destination to the survivors or survivor of the 
 testator's sons ; and failing them, there was a des- 
 tination over to the issue of the survivor. There 
 was thus not only a survivorship, which was suffi- 
 cient of itself to suspend the vesting, but a condi- 
 tional institution in favour of the issue of the sur- 
 vivor failing him at the period of division. The 
 next case worthy of remark, is that of Balderston 
 V. Fulton, 23d January 1857, decided by the First 
 Division, which appears to have proceeded upon 
 presumed intention in opposition to the declared 
 intention of the testator. Here a truster conveyed 
 his estate to trustees for payment of the annual 
 income to his widow, " and after her death, to his 
 daughter, an only child, during her lifetime ;" and 
 after her death, it was provided by the fourth pur- 
 pose of the deed, " for making over to my own nearest 
 heirs, or to any person or persons to whom I shall des- 
 tine the same by any writing to be hereafter executed 
 by me, the whole estate and effects, heritable and 
 moveable, above conveyed to my said trustees," after 
 
60 
 
 the death of himself, his widow and daughter. The 
 widow had also a power to destine and convey the 
 whole estate ; but she died without having exer- 
 cised this power. It was held, that a right of fee 
 had vested in the daughter ; reversing the judgment 
 of the Lord Ordinary, who held that no fee had 
 vested in the daughter, on the ground that no right 
 of fee was conferred on her. 
 
 It is dif&cult to reconcile this decision with any 
 ascertained principle of law on this subject, or even 
 with the declared intention of the testator, for he 
 declared that the division should take place after 
 the daughter's death in distinct terms, and then to 
 divide the residue among his own nearest heirs, and 
 not to the daughter, or her heirs. Nowhere does 
 the testator confer any right of fee upon his 
 daughter, and -far less can this be inferred anywhere 
 from the terms of the deed. On the contrary, the 
 trustees were appointed to keep up the trust during 
 the lifetime of the widow and daughter, for their 
 respective rights of liferent ; and then, on their 
 deaths, to convey and make over the trust-estate as 
 it then stood. The provision also in favour of the 
 nearest heirs of the truster was a provision in favour 
 of thase wlw should be the truster's nearest heirs at 
 the termination of the trust, upon the death of the 
 longest liver of himself, his widow, and daughter. 
 The division was then, and only then, to take place ; 
 so that the truster could never have intended the 
 fee to vest in the daughter during her lifetime, be- 
 cause her predecease was a contemplated and ne- 
 cessary condition previous to any conveyance of the 
 
61 
 
 fee. However, the decisions pronounced in the two 
 recent cases of Walker, &c. v. Walker, 20th January 
 1859, and Vines v. Hillow, 13th July 1860, by the 
 Second Division, appears to be well founded. In the 
 former, the destination was to three grandchildren 
 nominatim, with a survivorship as at the death of 
 the testator's widow, by which the fee was held sus- 
 pensive to that time. In this case the trustees were 
 directed to pay, convey, and make over the truster's 
 whole estate and effects, immediately after the death 
 of his widow, or on his youngest grandchildren 
 attaining majority, whichever of these events should 
 last happen, to his three grandchildren nominatim, 
 and to the survivors of any one of them who should 
 predecease without leaving lawful issue. Two of 
 the grandchildren having died, one of them leaving 
 lawful issue, it was found, in a competition between 
 them and the survivor, that he (the survivor) was 
 entitled to two-thirds, and the children of the pre- 
 deceasers to one-third, in right of their parent, but 
 that they could not claim a share of the other pre- 
 deceaser as -his next of kin, because no right had 
 vested in him. The Lord Justice-Clerk Inglis, in 
 giving judgment, remarked :-^" It is said there is 
 no destination over ; but the right of survivorship 
 is a stronger circumstance against vesting than a 
 destination over. It contemplates that, when one 
 person dies, his right shall pass under the will. 
 Therefore, when there is a plain right of survivor- 
 ship, it is conclusive against the right of vesting." 
 Lord Cowan also observed : — " That if any general 
 rule can be deduced from the decisions in such cases 
 
62 
 
 it is this, that if there is a survivorship provided 
 for, the effect is to delay the period of vesting till 
 it be seen whether any survive, and who the sur- 
 vivors are. But see tJae case of Donaldson's Trustees 
 V. Macdougal, 20th July 1860, where the whole Court 
 was consulted, and which appears to be in direct 
 opposition to this case. There is another case, de- 
 cided recently in the Second Division, deserving of 
 special remark, in which there was a new rule 
 applied in deciding cases of vesting; Ferguson's 
 Trustees v. Hamilton, 13th July 1860. Mr Fergu- 
 son of Cairnbrock left a trust-disposition and settle- 
 ment, by which he bequeathed numerous legacies 
 of considerable value. Two of these were be- 
 queathed in the following terms : — " To John Ha^ 
 milton, baker in Irvine, in liferent, and his children, 
 equally among them, in fee, £20,000 ;" and a legacy 
 of £5000, in similar terms, to James Hamilton, tail- 
 or in Irvine. The former had four children aUve at 
 the testator's death, and one in utero matris; the 
 other legatee had no children. There were other 
 legacies bequeathed in the same terms, but the Hfe- 
 renters agreed to restrict their rights to a hferent. 
 It was held that the two hferenters, John and James 
 Hamilton, were entitled to immediate payment of 
 their legacies from the trustees ; for the reason, 
 that the trust, so far as the legacies were concerned, 
 was to pay and not to hold, and the words by which 
 they were bequeathed were words well known in 
 law not to have the effect of restricting the legatee's 
 right to a liferent, and which were used in a trusts 
 deed prepared by a man of business, to whom the 
 
63 
 
 technical sense must be presumed to 'have been 
 known. Lord Wood took this view of the case, and, 
 in a very lengthened argument, he referred to several 
 cases where the Court had followed the same rule. 
 But some of these do not appear to be applicable to 
 this one. In one or two there was a direct convey- 
 ance of an heritable subject, and in some others there 
 was no trust. Lord Cowan, on the other hand, dis- 
 tinctly laid it down as a maxim of our law, that 
 " there can be no doubt that when the estate or 
 money is vested in trustees, to be retained and held 
 in liferent for the parent, and the fee for the children, 
 the fee will remain in them for behoof of the child- 
 ren, subject to the father's liferent." His Lordship, 
 however, was of opinion that there was no proper 
 trust in this case. Lord Benholme was of opinion 
 that the rule did not apply to money provisions ; but 
 concurred with their Lordships, not to divide the 
 opinion. It is dif&cult to understand this decision, 
 according to any known principle in our law, which 
 generally regulates our decisions in destinations of 
 moveable succession. To hold that the liferenters, 
 John and James Hamilton, were entitled to payment 
 of the fee of the legacies, was not only completely 
 at variance with the plain reading of the clause, but 
 • was quite inapplicable to moveable succession and 
 the construction of a trust-deed. In simple destina- 
 tions in heritable succession, where the destination 
 is to a parent in liferent, and to the children in fee, 
 the parent is held as the fiar, because the fee cannot 
 remain in pendente. But where there is a convey- 
 ance to trustees, for behoof of a father in liferent 
 
64 
 
 and his children in fee, this vests the fee in the 
 trustees, so that the right of the father is only a Hfe- 
 rent, and the children's rights vest in them accord- 
 ing to the terms of the destination ; Seton, 6th 
 March 1793, M., 4219; Grant, 28th May, 179 N.E. ; 
 Bushhy, 23d June 1825, 4 S., 110; Eoss, 22d June 
 1847 ; and, a fortiori, this rule applies to moveable 
 succession under the trust-deed. By it, as already 
 observed, the truster conveys absolutely the fee of 
 his estate to his trustees, for the " uses, ends, and 
 purposes" of the trust, and until they divest them- 
 selves of it no other person can possess it ; neither 
 can it be in 'pendente so long as it remains with 
 them. But there is another part of the destination 
 which is opposed to the liferenters being entitled to 
 the fee of the legacies. We have seen that, in des- 
 tinations to children of a liferenter, procreated and 
 to be procreated, that this was held suspensive of 
 vesting until the death of the liferenter, when the 
 number of the children only then could be deter- 
 mined. The terms of this destination are no doubt 
 different, but they comprehend the same meaning ; 
 and the question is, what children are here meant 
 — those existing at the death of the testator only, or 
 those existing at the death of the liferenter ? Here 
 there is a class of persons referred to which caimot 
 be ascertained until the death of the liferenter, and 
 accordingly no vesting until that event. It would 
 be unnatural on the part of the testator if he in- 
 tended to favour only the children existing at his 
 death and not the others ; and besides, the word 
 " children" does not warrant such a restricted mean- 
 
65 
 
 ing. Farther, could not the children nascituH after- 
 wards come upon the trustees, and say, " We are 
 children of John Hamilton, and therefore entitled 
 to a share of the fee of the legacy bequeathed to his 
 children ? " This point received very full discussion ; 
 and it was maintained, on behalf of the children 
 alive at the testator's death, that they only were en- 
 titled to claim the fee as representing the class of 
 children to whom it was destined. It appears to be 
 the rule in England, that the children only alive at 
 the death of the testator are included in such a de- 
 scription. But even in some cases this has been 
 held by the English Courts to be a matter of inten- 
 tion, as drawn from the terms of the deed. It was 
 admitted by the Judges that the whole children 
 were included, but at the same time it afforded no 
 ground for their decision in the present case. 
 
 Upon the subject of vesting, may be consulted 
 the very valuable Treatise on Deeds, &c., by the late 
 Mr Duff, the only author who has treated this sub- 
 ject at any length, and Menzies' Conveyancing, 2d 
 edition, p. 682. Professor Menzies, in treating of 
 vesting under the trust-deed, refers to a case in 
 which the Lord President M'Neill laid down some 
 very valuable practical rules applicable to vesting. 
 
 This subject appears also to be the vexed ques- 
 tion among English lawyers. An eminent lawyer 
 (WiUiams) writes : — " It must be confessed that the 
 cases which have been above cited, and the various 
 distinctions created thereby, have left the law in a 
 state of some confusion." 
 
 The following are the general rules laid down by 
 
66 
 
 the Englisli Courts for their guidance in such cases, 
 with the corresponding rules laid down by the Courts 
 of Scotland, which, it will be observed, are nearly 
 the same, except in some minute distinctions : — 
 
 1st, It is held that where there is no gift, but a 
 direction to pay, or divide and pay at a future time, 
 or on a given event, or to transfer " from and after" 
 a given event, .the vesting will be postponed tiU 
 after that time has arrived or that event has hap- 
 pened, unless, from particular circumstances, a con- 
 trary intention is to be collected. 
 
 The exceptions to this rule are — (1) That where 
 a legacy is to be severed instanter, it will vest ; but 
 where it is only to be severed at some future time, 
 it does not vest ; and (2) where the future gift is 
 only postponed to let in some other interest (such 
 as a liferent), the vesting will not be deferred till 
 the period of distribution ; Williams' Executors, 
 vol. ii, p. 1108. 
 
 This rule appears to be the same as that in Scot- 
 land. 
 
 2d, As to a legacy affected by a limitation over 
 on a contingency, difficult questions occur. The 
 rule seems to be, that a limitation over on a contin- 
 gency does not of itself prevent any of the shares 
 of the legatees from vesting in the meantime, pro- 
 vided the words of the bequest be in other respects 
 sufficient to pass a present interest; Williams' Exe- 
 cutors, ut supra. 
 
 This rule appears to be the same as that adopted 
 with regard to conditional institution in our law. 
 Sometimes English lawyers hold a legacy to be 
 
67 
 
 vested liable to be divested on some contingency or 
 future event. 
 
 3d, In regard to bequests by way of portions to 
 children, payable at the age of 21 years, or mar- 
 riage, the English rule leans strongly in favour of 
 vesting. " The Court has, in such cases, determined 
 in favour of the eldest child taking at the age of 21, 
 as the will directs, and sacrificed the intention that 
 all the children shall take ;" Jarman on Wills, latest 
 edition, vol. ii, p. 133. 
 
 On the other hand, our Court inclines to the more 
 natural intention of the testator, to include the whole 
 children born and to be born ; and makes a distinc- 
 tion between a bequest to children by a testator 
 who is the father, and a bequest to children by a 
 testator other than the father. In the former case, 
 when the father dies, bequeathing provisions to his 
 own children, their numbear is determined imme- 
 diately at his death, so that their shares can be as- 
 certained, and nothing occurs to prevent the vesting 
 a morte testatoris, unless otherwise expressly de- 
 clared. But in the latter case, where provisions are 
 bequeathed to children by a testator other than the 
 father, as, for instance, to one in liferent, and to his 
 or her children in fee, payable at their majorities or 
 marriages, the questions naturally occur, — Is the 
 number of children born at the death of the testator 
 to be taken, or is the children born and to be born 
 during the lifetime of the liferenter to be included ? 
 And, if the shares be held to vest on the eldest at- 
 taining majority, how can the shares be ascertained 
 if the whole children are to be included ? It would 
 
 e2 
 
68 
 
 be anomalous to liold one share to vest, and the other 
 not. In these circumstances, our Court generally 
 holds the vesting to take place on the death of the 
 liferenter, so as to include the whole children, and 
 avoid the anomaly of holding the shares vested liable 
 to be divested by children being afterwards born. 
 The cases previously cited are referred to, and also 
 the case of Scheniman, 25th June 1828, P.O. The 
 opinions of the Judges of the Second Division in 
 the case of Ferguson's Trustees v. Hamilton, already 
 cited, are also referred to. 
 
 Mh, In regard to residuary legatees, where there 
 is a destination to survivors, the question occurs^ 
 To what period does it refer ? Sir J. Leach, in one 
 case, said : — " That he considered it now settled, 
 that in the case of such a bequest, if there be no 
 special intent to be found in the will, the survivor- 
 ship is to be referred to. the period of di-vasion ; and 
 that if no previous interest be given in the legacy, 
 then the period of division is the death of the tes- 
 tator, and the survivors, at his death, wiU take the 
 whole legacy. But if a previous life estate be given, 
 then the period of division is the death of the 
 tenant for life, and the survivors, at such death, 
 will take the whole legacy ;" Williams' Executors, 
 p. 1319. 
 
 This appears to be the general rule adopted by 
 our Court ; but in some cases, where the destination 
 was in favour of legatees nominatim, and to the sur- 
 vivors, the vesting has been held to take place at the 
 death of the testator, even although a liferent had 
 been constituted. See, in the case previously men- 
 
69 
 
 tioned of Donaldson's Trustees v. WDougal, the opi- 
 nion of the Lord President. 
 
 5th, The English Courts hold a distinction in the 
 case of a bequest of real or mixed estate, but our 
 Court holds no such distinction. Where a direction 
 is given to trustees to pay and divide the residue of 
 the testator's estate, heritable and moveable, it is 
 held as moveable. 
 
 DESTINATIONS. 
 
 When a legacy is granted by a testator to one 
 simply, without mention of heirs, it will belong, 
 on the legatee's predecease, to the heirs of the tes- 
 tator ; Hamilton v. Hamilton, 7th and 8th Febru- 
 ary 1838, F.C., previously referred to. Here certain 
 legacies were bequeathed to legatees who prede- 
 ceased the testator, and the legacies were held to 
 have lapsed and fell to the testator's next of kin ; 
 although in this case the residue was also be- 
 queathed to certain persons, in defined shares, yet 
 the next of kin were preferred to the residuary le- 
 gatees ; but, however, the case was not argued on 
 this point. The children of the predeceasing lega- 
 tees claimed their parents' legacies, on the condition 
 si sine liberie decesserit, and this being found inef- 
 fectual, it was, as a matter of course, declared that 
 the legacies went to the next of kin of the testator. 
 But it is now held, where a residuary bequest has 
 been made, a lapsed legacy belongs to the party 
 ultimately benefitted; and where the settlement 
 
70 
 
 is total in favour of certain parties in specified 
 shares, the lapsing of the shares of one or more be- 
 nefits the survivors ; Nisbett's Trustees, v. Nisbett, 
 1851. Here a party conveyed his whole estates to 
 trustees for division among the children of A, B, 
 and C, declaring, that if any of these parties im- 
 pugned the deed, he should forfeit all benefit under 
 it for himself and children. A forfeited his share 
 of the moveable estate, and it fell to be divided 
 among the other beneficiaries. Legacies are often 
 bequeathed to one, "his heirs, executors, and as- 
 signees," but the most important word is Jieirs, as 
 this includes executors, who are heirs in mobilibus. 
 Heirs whomsoever and heirs-at-law are synonymous 
 with heirs ; and these terms, when unqualified, 
 plainly embrace successors by the destination of 
 law, however remote ; but when used in a testa- 
 mentary deed, their meaning is flexible, and may 
 be restricted to heirs of the body, by clear indica- 
 tion of intention. The term "heirs'"' is generally 
 added after each individual legatee, when heirs are 
 intended to be favoured on the failure of the lega- 
 tee ; and it would appear that a general destination 
 to heirs is not to be relied on ; Paterson, 4th June 
 1741, Mor., 8070. In a legacy to two or more per- 
 sons there is a material difference, according as the 
 legacy is to two persons simply, or to two persons 
 equally between them. If a legacy be conceived in 
 these words, " I hereby leave and bequeath the sum 
 of £100 to A and E, jointly, the sum would be 
 equally divided between them,, if both should sur- 
 vive the testator, and if either of them should pre- 
 
71 
 
 decease, his share -would accresce to the survivor. 
 But, on the other haud, where a legacy is to A and 
 B equally and proportionally, or share and share 
 alike, or to A and B, each one-half, in any of these 
 cases the share of the one predeceasing would fall 
 with him and not accresce to the survivor. And 
 where a legacy is bequeathed to A and B, £100, 
 they have both an equal right to the sum, but as 
 both cannot enjoy it in solidum, it must be divided 
 between them if both are ahve when the su.ccession 
 opens ; and if one survive, he will take the whole, 
 the death of the other having obviated the necessity 
 of division. And in the case of a legacy to one in 
 liferent and another in fee, either, on his survivance, 
 will take the right conferred on himself; Bell's 
 Prin., 1879. 
 
 CONDITIONAL INSTITUTION AND SUBSTITUTION. 
 
 Our principles of law on this subject are also 
 borrowed from the Eoman law. By that law a tes- 
 tator had no power to name an heir to his heir ; 
 and thus the testator's heir became the absolute 
 proprietor or fiar of the siibject or estate bequeathed 
 to him ; and this was termed the institutio hceredis, 
 which has the same meaning as the word fiar in our 
 law. But, at the same time, he could appoint an- 
 other heir, failing his own heir by predecease ; and 
 this is similar to what is termed conditional insti- 
 tution in our law. The testator had also power, 
 where his heir was a pupil, or imbecile, or deaf and 
 
72 
 
 dumb, to name an heir to him ; and this was called 
 suhstitutio pupillaris; but in our law, substitution 
 has a wider meaning, a testator having power to 
 name an heir to his heir, or one or more legatees 
 after the first, whether under or aboTe the legal 
 age, in all legacies ; but this does not apply to legi- 
 tim, it being due ex lege. 
 
 The term, institute, in our law, is applied to the 
 person to whom, in a settlement, the legacy is be- 
 queathed first, where there are successive heirs, or 
 one person substituted to another ; as, for example, 
 a legacy to A and Ms heirs, A is said to be the in- 
 stitute and the heirs conditional institutes ; A takes 
 the legacy, if he survive the testator, but if he 
 should predecease him, then the heirs take it as 
 conditional institutes ; because it goes to them on 
 the condition of A predeceasing the testator ; but if 
 he survive, then their right, or spes successionis, is 
 completely cut off. A legacy to A, whom failing, 
 to B, also constitutes a conditional institution in 
 favour of B. A, if he should survive the testator, 
 has an absolute right to the legacy, which will pass 
 to his own heir, whether of law or provision, to the 
 entire exclusion of B ; but if A should predecease 
 the testator, then the legacy will become vested in 
 B, to the exclusion of the heirs of A. A legacy to 
 B, " whom failing, before or after me, to 0," con- 
 stitutes a proper substitution in favour of C, so that 
 he will be entitled to the legacy on the death of B, 
 even after the testator, to the exclusion of B's heirs, 
 if the substitution be not evacuated. This, how- 
 ever, is not an indefeasible substitution in favour of 
 
73 
 
 0, for B is still the unlimited fiar, and may dispose 
 of the legacy onerously, or rationally, or gratui- 
 tously, and by so doing, exclude the spes succes- 
 sionis of 0. At one time substitution appears to 
 have been looked upon as an indefeasible right, and 
 that it took place, although the institute survived 
 the testator, at any time after the testator. Mr 
 Duff, in his " Treatise on Deeds chiefly affecting 
 Moveables," at page 109, expresses some doubt as 
 to the terms, " to B, whom failing, to C." He ad- 
 mits that this gives a right to C on the predecease 
 of B ; but he says, " it is not clear that they con- 
 stitute a proper substitution, so as to carry the right 
 to in the event of B dying after that period, and 
 being survived by C." As already observed, accord- 
 ing to the Roman law, which did not in the gene- 
 ral case allow a person to name an heir to his suc- 
 cessor, a substitution meant nothing more than a 
 conditional institution, namely, that the substitute 
 was to succeed in the event of the institute dying 
 before the testator, in which case the substitute 
 took up the succession. If the institute survived 
 the testator, the succession vested in him, and de- 
 volved on his heirs, and not on the substitute. 
 Erskine regards the substitution in moveable rights 
 as conformable to this law at a former period. 
 He says : — " Our old practice in the substitution 
 of bonds was conformable to the Eoman law ; fo^ 
 the substitution took place only in the event of 
 the institute's death before the term of payment of 
 the bond or of his not accepting of the right." But 
 he also observes that, by later decisions, the substi- 
 
74 
 
 tute has succeeded, at whatever time the institute 
 died; that clauses of substitution in entails have 
 been always thus interprgted ; and that our more 
 recent practice has also extended the same rule to 
 testaments ; and in support of this view he refers 
 to a particular case, Christie v. Christie, 13th July 
 1681, Mor,, 8197. It was here found that the sub- 
 stitute was entitled to succeed in preference to the 
 heir of the institute, notwithstanding that the latter 
 had survived the testator, and made up a title by 
 confirmation. This decision, however, was thought 
 to go too far, and was afterwards disapproved of, 
 and a tendency to the old practice prevailed, as in 
 the Eoman law ; and this was -estabhshed by the 
 case of Brown v. Coventry, 2d June 1792, Mor., 
 14863. Here a legacy was bequeathed to Eachel 
 Barclay, " in liferent, for her liferent use only, and 
 the heirs of her body in fee ; whom failing, to the 
 said Eobert Coventry, his heirs, executors . and ad- 
 ministrators." The liferentrix survived the truster- 
 for some years ; and, having married, she died 
 leaving an infant daughter. The father of the 
 child, as administrator-in-law, pursued Coventry, 
 who was also universal disponee, for payment of 
 the legacy, and obtained decree against him ; but 
 before the legacy was paid the child died, and the 
 father then, as executor of his child, demanded 
 payment of the legacy ; but the executor (Coventry) 
 resisted this claim, on the ground that the substitu- 
 tion was effectual to exclude his right, the child 
 having died a pupil and without having received 
 payment ; but the father of the child was found 
 
75 
 
 entitled to tlie leg&cy, for the reason, that the child 
 was the institute, and that the legacy ought to 
 have been paid, which was held equivalent to 
 payment. It is therefore beyond doubt that the 
 words " whom failing," constitute merely a condi- 
 tional institution ; and this is presumed in cases 
 of doubt. There is a striking illustration of this 
 rule in a comparatively recent case, which shows 
 in a forcible manner the operation of the principle 
 of conditional institution and substitution. It oc- 
 curred where a father executed a deed of settle- 
 ment whereby he conveyed his whole moveable es- 
 tate, consisting of two personal bonds and sums of 
 money in bank-receipts and open account, to his 
 daughter ; " and, in case she die without heirs of 
 her own body, lawfully begotten, then it is my de- 
 sire yt ye whole stock remaining after her death, 
 be divided equally between ye children of my 
 three brothers and those of my sister." The 
 daughter uplifted all the funds, with the exception 
 of one of the bonds, which was payable to the fa- 
 ther, his heirs, executors or assignees, and re-in- 
 vested the money on loan to her uncle, who was 
 the debtor in the unuplifted bond per £300. She 
 died intestate ; and, in these circumstances, a com- 
 petition arose between the next of kin of the 
 daughter, who claimed the whole moveable estate, 
 while the substitutes claimed it in virtue of the 
 destination contained in the testator's settlement. 
 It was found, in an action of multiplepoinding, that 
 the substitution was evacuated as to the funds so 
 operated upon, and therefore the money went to 
 
76 
 
 her next of kin.; but that the substitution was ef- 
 fectual to the unuphfted bond, which accordingly 
 went to the substitutes; MacdowaU, 19th June 
 1847, 9 D., 1284. It was admitted that there was 
 a substitution, and it was strongly urged that the 
 evacuation of the substitution might be inferred as 
 to the unuphfted bond, from the circumstance that 
 the daughter had lent aU the other sums to her 
 uncle, the debtor in this bond, and that, if this had 
 not been the case, it also would have been uplifted. 
 But it was observed from the Bench, that there was 
 no such thing known in the law of Scotland that 
 the evacuation of substitutions could be inferred 
 from circumstances ; but that the presumption was 
 that the substitution was meant to be effectual where 
 there was undue delay in transferring the right to 
 the institute. Here, then, are two most important 
 rules to be observed from this case. So far as the 
 funds were uplifted or transferred to the name of 
 the institute, which was equivalent to actual pay- 
 ment, the institute's heirs succeeded to them, to the 
 exclusion of the substitute's ; and, on the other 
 hand, as to the funds which were not uplifted, or 
 transferred, or paid, the substitutes succeeded to 
 these, to the exclusion of the institute's heirs ; but 
 if the institute had died testate, this would have 
 had the effect of excluding them as to these funds. 
 Substitution is therefore a spes successionis, condi- 
 tional on the institute dying without having dis- 
 posed of the subject, or without having altered 
 the destination, and it has the effect of over- 
 ruling the law of intestate succession, so that the 
 
77 
 
 subject will pass to the substitute, and, in the 
 event of his dying before the institute, it will go 
 to his heir in preference to the institute's heirs 
 in mohilihus. And in every case, then, where a 
 legacy has been actually paid to the institute, the 
 substitution is totally vacated, and if not paid, 
 if steps have been taken to enforce payment, this 
 will be held sufficient. In the case of Brown 
 V. Coventry, the legacy was paid to the father, 
 as executor of the child, who was a pupil ; dili- 
 gence having been raised against the executor for 
 payment during the child's life. Substitution is 
 also evacuated by the institute conveying the right 
 to another mortis causa. But there appears to be 
 an exception to this rule in the case of a testamen- 
 tary deed dated before a right of substitution vested 
 in the testator, because it is presumed that he 
 could have had no intention "of defeating the right 
 of the substitute by his will, when he was not aware 
 of such a right ; Campbell, Mor., 740, 14855. But 
 the principle here laid down appears to be over- 
 ruled by decisions of a more recent date. In al- 
 most all deeds the testator conveys aU his estate, 
 both heritable and moveable, " presently belonging, 
 or that shall belong to me at the time of my 
 death." In such a case, therefore, although the 
 testator may not be aware of a right which may 
 belong to him at a future time, yet it is but a fair 
 presumption that he would dispose of such right 
 according to his settlement, especially where there 
 is an express conveyance of all estate that shall 
 belong to him at the time of his death ; and, in fact. 
 
78 
 
 this clause is put in for the very purpose of convey- 
 ing any property of whicli he may become possessed. 
 This appears to be the principle laid down in the 
 case of Leitch's Trustees, 2d June 1826 ; affirmed, 
 W.S., 3, 366, already quoted. Lands were conveyed 
 to trustees for the liferent of the granter's widow, 
 and for several substitutes in fee, one of these sub- 
 stitutes, in whom the fee was held to have vested, 
 executed a general disposition and settlement, and 
 predeceased the widow ; it was found that the fee 
 had vested in him, and that his disposition evacu- 
 ated the subsequent destinations. The same prin- 
 ciple was held in the previous case of Gordon's 
 Trustees, 4th December 1821. In this case, also, 
 a general disposition carried a provision which was 
 held to have vested in the testator. The legal as- 
 signation of the wife's estate to the husband is also 
 held to evacuate a substitution. 
 
 •The destinations in the testament are generally 
 not so complex as in the trust-disposition, by which 
 numerous parties are often benefitted, and whose 
 rights require to be provided for. It is therefore 
 in such cases that the greatest difficulties are expe- 
 rienced in ascertaining the rights of parties. Some- 
 times a provision is bequeathed to a number of per- 
 sons in succession, payable at a certain time under 
 a certain contingent condition, such as the death of 
 a Hferenter or annuitant. The question occurs, then, 
 to whom is the provision payable ? Whether the 
 party first called, or, failing him, the person who 
 is alive at the time when the succession opens ? 
 and, in the second place, the next question occurs, 
 
79 
 
 Whether there is a substitution or a conditional 
 institution, or an indefeasible substitution ? Such 
 are ' some of the questions that occur under the 
 trust-settlement. 
 
 In an early case, Duncan v. Myles, 2d June 1809, 
 F.C., there is a good example of an indefeasible 
 substitution of certain rights of liferent, and a con- 
 ditional institution, so far as regards the fee, and 
 in which reference was made as to the distinction 
 of there being a trust and where there was none. 
 Here trustees were ordered to pay a sum of money 
 to themselves, as trustees for behoof of the truster's 
 brother in liferent, and of the heirs of his body ; 
 whom failing, of his sister, her heirs and assignees 
 whomsoever in fee. On the death of the brother, 
 his children (being his heirs) claimed the fee of the 
 legacy as the parties entitled to it on the death of 
 their father, and founded strongly on the case of 
 Brown v. Coventry, previously referred to, as esta- 
 blishing their claim; but it was held that their right 
 was a mere liferent, and that the sister, or whoever 
 was alive at the termination of the hferent, had the 
 right to the fee as conditional institutes, they being 
 the first parties called to the fee. Although, in one 
 sense, this is a substitution of one person after an- 
 other, so far as regards the right of liferent ; yet, 
 properly speaking, it is not the substitution which 
 carries the fuU right on the failure of the institute. 
 But, at the same time, there was a proper substitu-" 
 tion, so far as regards the destination of the fee ; 
 because, on the failure of the sister, who was the 
 institute at the termination of the liferent, it is des- 
 
80 
 
 tined to her heirs, who would have been entitled to it 
 as conditional institutes. It is also established that 
 the words " whom failing" mean nothing more than 
 a conditional institufion, as in the testamentary 
 deed. By the trust-deed, therefore, a conditional 
 institution may be suspended so as not to take effect 
 until a contingency happen, such as the death of the 
 liferenter, and in this case the substitute would be 
 preferred on the death of the institute before that 
 time, although he survived the testator. Another 
 example of this kind will be found in the case of 
 AUan V. Fleming, 20th June 1845. The clause was 
 in these terms : — " Upon the death of the said Isa- 
 bella Allan, and leaving lawful issue, I appoint my 
 trustees to convey and make over to and in favour 
 of such child or children ; and, in case of the death 
 of either of them, without lawful issue, to the survi- 
 vors or survivor of them, equally among them, share 
 and share alike, in fee and property ; and, all whom 
 failing, to John Allan." The truster was survived 
 by this daughter, who afterwards married, and 
 died, leaving lawful children. Here the first par- 
 ties called to the fee were the survivor or survivors 
 of the children of the testator's daughter ; and as 
 they were the parties ahve when the succession 
 opened, the trustees were held bound to execute a 
 conveyance of the fund in their favour, without any 
 ulterior destination in favour of the other substi- 
 tutes, who were merely conditional institutes enti- 
 tled to succeed on the failure of the children at the 
 death of their mother. The destination to ulterior 
 parties, after the fee was destined, with the words. 
 
81 
 
 " whom failing," were clearly institution, intended 
 only to provide for the contingency of Isabella 
 Allan dying without leaving lawful children. The 
 trustees were appointed, immediately upon the death 
 of the said Isabella Allan, to denude in favour of the 
 children who should then be alive, so that such a 
 direction was quite inconsistent with an intention of 
 keeping up the trust for the benefit of the other sub- 
 stitutes. In a subsequent case, Newbigging v. Pur- 
 sell, 9th March 1853, affirmed, H. L., 10th May 
 1865, where there was some doubt as to the time 
 the conditional institution was to take effect, whe- 
 ther a morte testatoris or at the death of certain 
 annuitants, the presumption was a morte testatoris, 
 the institute having survived the testator but pre- 
 deceasing the annuitants. In this case the testator 
 made over his estate to his nephew in trust, for pay- 
 ment of debts and certain annuities, and after satis- 
 fying these, for payment of the annual produce to 
 the nephew himself during his life ; and, after exe- 
 cuting the purposes of the trust, the free residue 
 was declared to pertain and belong to the nephew 
 and his heirs ; whom failing, to other parties. The 
 nephew having survived the testator, but having died 
 before some of the annuitants, it was held that the 
 fee had vested before the time of his death, accord- 
 ingly the funds were conveyed by his settlement, 
 which evacuated the substitution. It was strongly 
 urged in this case that there was a destination over ; 
 but this was merely a conditional institution, being 
 preceded by the words " whom failing," so that the 
 only point was the time when the conditional insti- 
 
82 
 
 tution was to have effect, and the only indication 
 of the time when this was to take place was when 
 the purposes of the trust were executed. Now, 
 it might have been held that the purposes of the 
 trust were not fulfilled until the death of the an- 
 nuitants, because it was necessary to keep up the 
 trust for their respective rights. But, however, 
 this case is not free from specialties, which influ- 
 enced the Court in deciding the case. There is a 
 clear distinction between this case and the imme- 
 diately preceding one of AUan v. Fleming, where 
 there was a destination to children, and their sur- 
 vivors, terms which necessarily implied that the 
 conditional institution would only have effect on 
 the death of the liferenter. In a recent case, BeU 
 V. Cheape, 21st May 1845, where there was a desti- 
 nation to a legatee's heirs, executors, and assignees, 
 a question was started, on which the whole Court 
 was consulted. It occurred in the following cir- 
 cumstances, viz., a trustee executed a trust-settle- 
 ment, and, inter alia, granted a legacy to one per- 
 son in liferent, and, on her death, without leaving 
 lawful issue, to another person, " her heirs, execu- 
 tors, or assignees." Miss Macintosh, the person to 
 whom the conditional fee was bequeathed, survived 
 the testatrix but predeceased the liferenter, having 
 executed a trust-deed, by which she assigned all her 
 interest under the testatrix's settlement to her trus- 
 tees. The liferenter died without issue, whereupon 
 a competition arose between the next of kin of Miss 
 Macintosh, who claimed the legacy as conditional in- 
 stitutes under the testatrix's settlement, and Miss 
 
83 
 
 Macintosh's trustees, who claimed it as her assig- 
 nees. They conceded that the legacy had not vested 
 in Miss Macintosh, but they rested their claim upon 
 the destination to Miss Macintosh's assignees ; and 
 strongly pleaded, that if the legacy was effectual to 
 her heirs it was equally so to her assignees, and, by 
 her dying testate, the substitution of the heirs was 
 thereby evacuated. They rested also a great deal 
 upon intention and persona delecta. The next of 
 kin claimed the legacy as conditional institutes, and 
 pleaded, that as it was a conditional legacy in favour 
 of Miss Macintosh, and which was the failure of the 
 Hferentrix having children, so that, until the con- 
 dition was purified, no right could have vested in 
 Miss Macintosh, and consequently her assignation 
 was ineffectual, for it was well estabhshed that 
 until a legacy vested, the legatee had no power to 
 test or assign it. The majority of the Court pre- 
 ferred the next of kin to the legacy, reversing the 
 judgment of the Lord Ordinary, which mainly pro- 
 ceeded on presumed intention. Lord Cockburn 
 remarked, as to presumed intention, — "But all 
 these conjectures are useless. She has died, leaving 
 her meaning to be gathered by the law, out of her 
 now unalterable language." In a recent case, a 
 question occurred as to whether there was a substi- 
 tution or a restricted substitution. A lady died, 
 leaving a trust-disposition and settlement, by which 
 she appointed certain legacies to be paid, and di- 
 rected her trustees to give effect to any writing 
 under her hand disposing of the residue of her 
 estate. One of these, dated in 1840, bequeathed a 
 
 F 2 
 
84 
 
 legacy to Miss OHeilly, and the residue to her 
 cousin, Lady Sempill. By another, dated 1841, she 
 appointed a substitution in the following terms: 
 " As there is no prospect now of my dear cousin, 
 the Eight Honourable Lady Sempill, having a child, 
 I depone and bequeath, as her successor, my grand- 
 niece, Miss Collins S. O'Eeilly." The Court of Ses- 
 sion found that this was a mere substitution in 
 favour of Miss O'Eeilly and did not limit the right 
 of Lady Sempill in any way ; and their judgment 
 was affirmed in the House of Lords. The Lord 
 Chancellor remarked, that the first instrument made 
 Lady SempiU absolute owner of the residue, and 
 the second gave Miss O'Eeilly only a apes succes- 
 sionis; and then stated the result, " which, though 
 it was always of some value, could not prevent 
 Lady Sempill from exercising all the rights of 
 ownership. The gift, like all common substitutes, 
 did not amount to a certainty, still, if Lady Sem- 
 pill had predeceased the testatrix, or if she did not 
 alter the destination, it was not ineffectual ;" Lady 
 SempiU v. O'Eeilly, 29th June 1853 ; affirmed 26th 
 May 1855. The next case is that of an indefea- 
 sible substitution, or a tailzied succession, and 
 which occurred in the case of Ogilvie (Cuming's 
 Trustee v. Boswell, 27th January 1852, and afiirmed 
 by the House of Lords 1858. Here the truster 
 executed a deed of settlement, by which he con- 
 veyed his property to trustees ; and, after payment 
 of certain debts, he directed them to lay out the re- 
 sidue for behoof of his grandson, and the heirs of 
 his body, till he or they should attain majority ; and 
 
85 
 
 then they were directed to denude in favour of the 
 grandson and his issue, and, failing them, then in 
 favour of his gTand-daughters, equally among them ; 
 but, by a codicil, the eldest daughter was appointed 
 to succeed without division, excluding heirs' por- 
 tioners, but under the condition of not altering the 
 order of succession, &c. The grandson attained 
 majority, and survived the truster, but died intes- 
 tate, and without being married, or without the 
 trustees having denuded in his favour. In a com- 
 petition between his heir-at-law and his eldest 
 sister, it was found that the trust-estate had not 
 vested absolutely in the grandson, and that the 
 eldest sister succeeded to the same in preference to 
 his heir-at-law, Mrs Boswell, who, in support of her 
 claim, founded strongly on the case of Gordon's 
 Trustees, 4th December 1821, already mentioned. 
 But there is a clear distinction between the two 
 cases. In the latter case the son had attained ma- 
 jority, and had died testate, so that the jus crediti 
 was carried by his settlement. But in the former, 
 although the grandson attained majority, he died 
 intestate, and before the trustees denuded in his 
 favour, so that, in any view, the substitution not 
 having been evacuated, was held effectual. At 
 the same time, the trustees could not denude until 
 the grandson attained majority ; because, until that 
 time, they could not know in whose favour they 
 were to denude, and that the substitution was 
 suspended until that time. But, even supposing 
 the grandson had ordered the trustees to denude, or 
 that they had actually denuded in his favour, they 
 
86 
 
 were bound to do so only with tlie condition against 
 altering the order of succession, which created an 
 indefeasibk substitution as regarded this condition ; 
 however, this condition would not be effectual 
 against third parties, unless fortified with irritant 
 and resolutive clauses, as in a deed of entail. Be- 
 fore leaving this subject it maybe proper to remark 
 that what has been said in regard to vesting is 
 equally applicable to conditional institution. For, 
 in the case of vesting, the question is, — the time 
 when the fee vested ? and, as to conditional insti- 
 tution, the question is, — the person to whom the fee 
 is destined ? and both questions include time and 
 person. It may be further remarked, that our law 
 on this subject is by far too complicated and refined ; 
 and it is impossible to think that a testator can un- 
 derstand all its ramifications, or that they can be 
 properly explained to him in order that he may 
 have a correct knowledge of their effects. One 
 great difficulty is the want of uniformity in the 
 words or clauses for conveying moveable property. 
 Heritable property is always conveyed in a parti- 
 cular form ; and the meaning of the clauses is well 
 ascertained and fixed by decisions. But there is no 
 such thing in the conveyance of moveable property-, 
 for not only are the leading clauses by which the 
 bequests are bequeathed allowed to be ruled by 
 other words in the same clause, but also by a con- 
 struction of the whole deed. 
 
87 
 
 LEGACIES AS AFEECTED BY LEGITIM. 
 
 In regard to legacies to those who are entitled to 
 their legal claims, such as the wife's jus reUctce and 
 the children's legitim, they are presumed to be giyen 
 in addition to those claims, unless otherwise pro- 
 vided; Howden, 18th May 1831. In this case a 
 testator bequeathed to his wife an annuity of £100 ; 
 to his only child a legacy of £2000 ; and the residue 
 to other persons ; and without declaring these provi- 
 sions to be in satisfaction of their legal claims. On 
 the widow's death, it was found that the daughter 
 had right, as representing her mother, to the share 
 of the moveables effeiring to the jus rdictce, and in 
 her own right to the legitim, and also to the legacy 
 payable out of the dead's part. But when the pro- 
 vision or legacy is granted to a child of several child- 
 ren who are entitled to legitim, he will be bound to 
 collate and impute it in part of his share of the 
 legitim, but if it be bequeathed over and in addition 
 to his legal claim, he will be entitled to both, but 
 otherwise he cannot take both ; Collier v. Collier, 
 6th July 1833; Nasmyth v. Nasmyth, 19th Decem- 
 ber 1833. Where the provision is a share of the 
 whole estate in a total settlement, it is plainly in- 
 compatible with the legal claim ; and thus, if a child 
 betake himself to legitim, he will forfeit his right 
 to the dead's part; Henderson, 26th July 1782, 
 Mor., 8191 ; and the case of Collier v. Collier, 6th 
 July, 1833. And where a hferenter repudiates her 
 right, this does not affect the right of the legatee's 
 children, to whom the fee has been destined; Fishers 
 V. Dixon, 24th November 1831. 
 
88 
 
 DOUBLE LEGACIES. 
 
 In the case of douBle legacies, the rule of the 
 civil law has been adopted, by which,, if legacies, 
 . although of the same amount, are left in different 
 deeds, or if, in the same deed, two legacies are be- 
 queathed with any Tariation in time, quality, or 
 condition, both are due. In the case of Elliot, 27th 
 February 1823, a testator bequeathed two legacies 
 of the same amount to the same person, by separate 
 deeds, differing in date, nature, and 'effect, the lega- 
 tee was found entitled to them both. But if the 
 testator has bequeathed more than one legacy to the 
 same indiYidual, whether in the same or separate 
 deeds, the intention to give two sums, if not clearly 
 shown from the deed, becomes a question of inten- 
 tion, and must be decided according to the terms 
 and nature of the deed. There are numerous cases 
 upon this point, and recently there was a very im- 
 portant case decided on the subject, namely, Hors- 
 burgh V. Horsburgh, 12th January 1847. Here a 
 testatrix executed a trust-deed in 1834, thereafter 
 several codicils bequeathing legacies, and in 1839 a 
 testamentary writing bequeathing legacies to the 
 same persons, of the same amounts, and in the same 
 terms. The whole Court being consulted, some of 
 these legacies were held additional, and some not. 
 As to those legacies which were held additional, 
 there was a slight alteration in the destination; as, for 
 instance, a legacy was to be paid to the " children" 
 of a person, and thereafter it was to be paid to the 
 
" daughters " of the same person. As to the legacies 
 which were held not to be additional, although there 
 was a difference in the phraseology, they were held 
 to he mere repetitions. In the case of Baird, 16th 
 July 1856, 18 D., 1246, a testatrix left various holo- 
 graph writings, bequeathing legacies, all previously 
 dated except one, to her trust-deed, which revoked 
 all former deeds, but declaring that any holograph 
 writings left by her should be effectual. It was held 
 that these were not revoked, but were part of the 
 trust-deed. The testatrix also bequeathed legacies 
 to the same individuals by the trust-deed, but it was 
 found that these were not accumulative, and that 
 the legatees were only entitled to one payment. 
 This was a case of intention ; but it is difficult to 
 understand this decision, on the ground that, as 
 these documents were not revoked by the trust-deed, 
 how was their effect nullified, the legatees having 
 received payment of single legacies ? If the tes- 
 tatrix meant both the holograph writings and her 
 trust-deed to be effectual, in what sense could they 
 be effectual but by making the legacies payable in 
 each ? As the Court held' them to be part of the 
 trust-deed, was this the only effect which the tes- 
 tatrix contemplated, or did the truster only intend, 
 after executing and incorporating these writings in 
 her formal trust-deed, that it was only holograph 
 writings, posterior in date, which she intended to be 
 effectual ? 
 
90 
 
 REVOCATION OF LEGACIES. 
 
 The next subject for consifleration is tliat of re- 
 vocation of legacies. Tte existence of legacies, be- 
 ing dependent on the existence of the deeds consti- 
 tuting them, revocation thus becomes an important 
 question. A testator has an unlimited power of re- 
 vocation during his lifetime, even although the deed 
 contains no power to revoke, and even though deli- 
 very should have taken place, and contains a clause 
 of warrandice ; Balders v. Ireland, 22d December 
 1814 ; Dougal, 25th February 1789, Mor., 16949. 
 Where a granter's moveable estate was conveyed, as 
 at death, and his heritage immediately, with a re- 
 served liferent, and the deed perfected by registra- 
 tion ; the latter conveyance was held irrevocable, 
 but the former was held revocable ; Leckie, 22d 
 November 1776, Mor., 11581 ; Somerville v. Somer- 
 vUle, 18th May 1819. The mere avowal of the testa- 
 tor's intention to revoke is not sufficient; Walker ». 
 Steele, 16th December 1825. Eevocation may take 
 place by destroying the testament itself, and any 
 mark of its authenticity ; Nasmyth, 27th July 1821. 
 Also, by a clause in a subsequent deed, either ge- 
 neral or special, or by a conveyance in favour of 
 another. At one time it appears to have been a 
 rule, where there were successive testaments made, 
 that the last in date superseded all prior wills, with- 
 out any express revocation, and this was the reason 
 why it was called the latter will; but this rule ap- 
 pears to be now doubtful, according to a recent de- 
 
91 
 
 cision; Grant v. Stoddart, House of Lords, 28tli 
 June 1852. If the last of several testaments have 
 been cancelled, the one immediately preceding 
 it, if preserved, will be caUed into operation, as if 
 no subsequent one had been made ; Howden v. 
 llovrden, 8th July 1815, F.C. ; and Dove v. Smith, 
 31st May 1827. A Scotch disposition of heritage 
 cannot be revoked by an English will not probative 
 according to the law of Scotland ; Cameron, 19th 
 May 1831 ; but by a subsequent case this principle 
 seems to be overruled ; Leith's Trustees v. Sir 
 George Leith, 6th June 1848. On the other hand, 
 a will, bequeathing moveables, may be revoked by 
 a foreign deed, if probative according to the law of 
 the country where the testator had his domicile, 
 although not probative according to the law of 
 Scotland. But it appears to be a question whether 
 or not a person has tacitly revoked his wiU by 
 changing his domicUe. As, for instance, a native 
 of Scotland, residing abroad, makes a will according 
 to the law of the country where he has his domicile, 
 and afterwards returning to Scotland, animo re- 
 manendi, and acquires a domicile, and dies without 
 altering his wiU, or making another — Is the foreign 
 will vaUd ? Eevocation is alone competent to the 
 party or parties who make the will, as in a mutual 
 settlement, unless power to revoke be reserved to 
 one of the parties. In the case of Grant v. Stod- 
 dart, 28th June 1852, already quoted, a testatrix 
 left a number of writings, some of them holograph, 
 and some prepared by a law agent ; one of these, 
 numbered fifth, was a conveyance of her heritable 
 
92 
 
 property, prepared by her law agent ; and another, 
 numbered sixth, was a testament bequeathing her 
 moveable property, also prepared by her law agent ; 
 but none of these contained- a clause of revocation. 
 The last one, numbered seventh, was a mere nomi- 
 nation of her trustees to be her executors. The 
 Court of Session found that the three last deeds only 
 must be taken as the testatrix's settlement, and that 
 there was an impHed revocation of the other writings. 
 This decision appears to have proceeded on the prin- 
 ciple that the latter will revoked all prior deeds, 
 although containing no clause to that effect. The 
 Lord President, who held, along with the minority, 
 that the whole writings must be taken as the testa- 
 trix's will, in giving his opinion, remarked that, in 
 the case of Horsburgh, the Court had the whole 
 Enghsh authorities before it, and these showed that, 
 neither in England nor in Scotland, were there any 
 grounds for holding that the last paper must be taken 
 as the testator's will. The House of 'Lords reversed 
 the decision of the majority, and found that aU the 
 writings formed part of the testatrix's settlement ; 
 and this decision proceeded on the ground that, as 
 none of the deeds prepared by the law agent con- 
 tained a clause of revocation, which was the usual 
 practice, the presumption therefore was, that the 
 whole writings must be held as part of the testatrix's 
 settlement. In the subsequent case of Baird, 15th 
 July 1856, already referred to, there were a number 
 of holograph writings and a trust-deed, which was 
 posterior in date, but containing a clause of revoca- 
 tion, and a direction to her trustees to pay aU lega- 
 
93 
 
 cies bequeathed by any -writing under her hand ; it 
 was held, notwithstanding the clause of revocation, 
 that the holograph writings formed part of the trust- 
 deed. It was inferred, in the case of Grant v. Stod- 
 dart, that if there had been a clause of revocation, 
 the prior holograph writings would have been re- 
 voked ; but in this case (Blair), although there was 
 a clause of revocation, yet it was held that they 
 were not revoked, for the reason of the direction to 
 the trustees to give eifect to them. In a case where 
 a testator revoked a legacy on the narrative of a 
 false clause, yet, as this was not made a condition 
 of the revocation, the alleged error was not held a 
 ground of reduction; Grants. Grant, 9th July 1841. 
 But, in a previous case, a revocation of a codicil, 
 bequeathing a legacy on a narrative which turned 
 out to be false, was sustained ; Speirs, 18th Decem- 
 ber 1829. 
 
 ABATEMENT OF LEGACIES. 
 
 Legacies may suffer total extinction or deprecia- 
 tion in a question with the creditors of the testator; 
 first general, then special legacies. There are nu- 
 merous cases on this point; Bruce, 9th June 1831; 
 Grierson, 16th May 1821. In the former case it 
 was found, where an estate, although sufficient for 
 all debts at the death of the testator, yet having 
 subsequently become insufficient to meet them, the 
 onerous creditors of the testator were preferred to 
 the beneficiaries under his settlement. This case 
 
94 
 
 appears to overrule tlie previous one of Eemington, 
 &c., lOth Dec. 1829, 8 S.D.B., 215. Also, in a recent 
 case, wliere a provision was bequeathed to a wife in 
 liferent, and her children in fee, the capital having 
 been exhausted in rem versum of the fiars for aliment 
 and education, it was found that they had no claim 
 of repetition against the trustees ; MiUer's Trustees, 
 23d February 1848, 10 D., 765. Sometimes the 
 payment of legacies is met with the plea of compen- 
 sation. In a case where a person had a claim for 
 services against the testator, and to whom a legacy 
 had been bequeathed, it was found that it could not 
 be imputed in extinction pro tanto of such claim ; 
 Arrol, 6th July 1822. In another case, where a 
 sum was bequeathed to a party, it was held by the 
 Court of Session to be extinguished by a debt due 
 by the legatee to the defunct, but this judgment 
 was reversed by the House of Lords in respect of 
 no legal evidence of the debt ; Eeid, 17th June 
 1823 ; 6th May 1825. The payment of legacies is 
 sometimes inferred, as in the case of MoUison, 22d 
 February 1822 ; affirmed 16th June 1824. Here a 
 party bequeathed one-half of his moveables to the 
 family of a niece, who were not aware of this, and 
 thereafter sent them upwards of £4,000, for which 
 they granted a receipt, binding themselves to pay 
 interest if required. From this and other circum- 
 stances, it was held, in a question with the executor, 
 that the payment had been made in anticipation of 
 the bequest. The case of Eennies, 10th June 1831, 
 is another illustration of this point. 
 
 Generally speaking, interest is due on legacies 
 
95 
 
 from the testator's death where there is no time 
 mentioned, although the executor cannot be com- 
 pelled to make payment until six months after the 
 death ; but this may be altered according to cir- 
 cumstances. Interest on legacies bequeathed by a 
 will executed in India was due from twelve months 
 after the testator's death ; M'AUisters, 29th June 
 1827, af&rmed 23d June 1830, 4 W.S., 142. In one 
 case, interest accresced to the capital sum of a le- 
 gacy, which was set apart for younger children ; 
 Glasgow's Trustees, 30th November 1830. 
 
 Legacy-duty is a charge upon the legacy, not 
 upon the estate. When the legacy is given " free " of 
 duty, it is an increase of the legacy, and falls to be 
 paid out of the estate, or where the word " clear " is 
 used. Legacy-duty is due on all sums of £20 and 
 upwards ; and the rate of duty is according to the 
 relationship of the legatee to the testator ; and there 
 is a different rate as to the testator dying after or 
 before the 5th April 1805. Where there are two 
 or more legacies to one legatee of the value of £20, 
 each shall be charged with duty, although each 
 may be separately under that amount. But in a 
 recent case, where a bequest under £20 was made 
 to each of the several schemes of the Free Church, 
 it was held that these were not to be considered as 
 several legacies to one legatee, and accordingly 
 legacy-duty was not due ; Stewart's Trustees, 26th 
 January 1858. The husband or wife of the deceased 
 is not subject to duty on legacies, &c. And whether 
 or not legacy-duty is exigible depends on the domi- 
 cile of the testator at his death ; Thomson v. Lord 
 Advocate, Bell's Appeal Cases, 1845-46. 
 
97 
 
 APPENDIX. 
 
 CLAUSES OF DESTINATIONS. 
 
 1. — Destination by a Testator to his Widow and Children. 
 
 [And I hereby direct and appoint my trustees to invest the 
 residue of my estate, heritable and moveable, and to pay the 
 annual interest or produce thereof to my said spouse, for her 
 liferent use only; and, on her death, to divide and pay the ca- 
 pital sum so invested among my children, share and share 
 alike, payable at their respective majorities or marriages : But 
 declaring, nevertheless, as it is hereby expressly provided and 
 declared, that their shares shall become vested rights in them 
 on my death,] 
 
 The provisions are declared to vest as at the death of the 
 testator, so as to be conveyed in any marriage-contract. 
 
 2. — Destination by a Testator to Children other than the Father. 
 
 [And I hereby direct and appoint my said trustees to invest 
 the sum of £8000 for behoof of my niece A B,_/or her liferent 
 use only, and for behoof of her children procreated and to bepro- 
 creaied of her present marriage in fee : Declaring that no right of 
 fee shall vest in the said children until the death of their mother, 
 the said A B, which is hereby declared the term of vesting ; 
 and also declaring that those children who shall have attained 
 majority, or who shall be married, at their mother's death, the 
 said A B, shall be entitled to payment of their shares at that 
 time ; but those children who shall be in minority at the death 
 of their mother, the said A B, shall not be entitled to payment 
 of their shares until majority or marriage.] 
 
 g' 
 
98 
 
 In framing destinations of this kind, care must be taken that 
 the clauses do not contradict one another, where a term of vest- 
 ing, a term of payment, and a destination to children are to be 
 inserted. In this destination the term of vesting is declared to 
 be the death of the liferenter, so as to include the whole num- 
 ber of childi-en. Care must also be taken not to confer a right 
 of fee on the liferenter when that is not intended ; see the case 
 of Ferguson's Trustees v. Hamilton, already referi-ed to. This 
 case is believed to be under appeal to the House of Lords. A 
 clause may also be put in providing for the predecease of any 
 of the children. 
 
 3. Destination by a Testator to his Widow in liferent, and to Nephews 
 and Nieces in fee. 
 [For behoof of my said spouse in liferent only, and to A, B, 
 C, D, my nephews and nieces, and to the survivors or survivor 
 of my said spouse, share and share alike, in fee : Declaring that 
 their shares shall not become vested rights in them until the 
 death of my said spouse, which is hereby declared to be the term 
 of vesting : But declaring that, in the event of any of my said 
 nephews and nieces dying before the term of vesting, leaving 
 lawful children, then such children shall be entitled to their 
 parent's share, as if such parent had survived the term of vest- 
 ing ; but if no lawful children be existing at that time, then to 
 the survivors or survivor of my said nephews or nieces, as be- 
 fore expressed.] 
 
 INTESTATE MOVEABLE SUCCESSION ACT, 25tH 
 MAT 1865. 
 
 1. The issue of a predeceasing next of kin shall come in the 
 
 place of their predeceased parent. No representation 
 among collaterals after brothers' and sisters' descendants. 
 
 2. Issue of predeceasing heir succeeding to the intestate's heri- 
 
 tage may collate ; but other issue not excluded by his not 
 
99 
 
 collating from claiming out of moveable estate diflference 
 between value of heritage and share their parent would 
 have taken on collation. 
 
 3. Father to succeed to one-half, where no issue of the de- 
 
 ceased, in preference to brothers and sisters and descen- 
 dants. 
 
 4. Failing father, mother succeeds to one-third in preference to 
 
 them. 
 
 5. Failing father and mother, brothers and sisters, german or 
 
 consanguinean, and their descendants, then brothers and 
 sisters uterine, succeed to one-half. 
 
 6. If a wife predecease her husband, her relations shall have no 
 
 claim to goods in communion. 
 
 7. If marriage dissolved within year and day, the rights of 
 
 survivor and of the heirs of predeceaser the same as if it 
 had subsisted longer. 
 
 8. Executors nominate, as such, have no right to any part of 
 
 the estate. 
 
 When a husband dies, leaving wife and children, his estate is 
 divided into three parts, viz. : — One-third to widow, called jus 
 relictm ; one-third to children, called legitim, or bairns' part of 
 gear ; the other, called dead's part, will also fall to the children, 
 as nearest of kin of their father, if not otherwise bequeathed. 
 If there be no children, the widow receives one-half, the other 
 goes to the nearest of kin. If there be children, but no widow, 
 they will succeed to the whole, one-half as legitim, the other 
 half, being dead's part, as nearest of kin of their father, 
 
 G'2 
 
100 
 
 ANALYSES OF CONFIRMATION AND PROBATE ACTS 
 1858 AND 1859. 
 
 I. Decerniture is obtained by petition to tbe Commissary of 
 county where deceased died domiciled ; but if domicile 
 not known, or furth of Scotland, and property in Scot- 
 land, to the Commissary of Edinburgh. Petition inti- 
 mated by Clerk of Court, at his office and the Court- 
 house, and by the Keeper of the Record of Edictal Cita- 
 tions. Where a second petition ia presented, intimation 
 is made to the party who presented the first. 
 
 II. Nine days after certification of intimation, decree may be 
 obtained, and extract thereof three days thereafter. 
 
 III. If deceased died domiciled in Scotland, his personal effects 
 
 in England and Ireland, or both, may be included in the 
 Inventory, provided the Commissary, by his inter- 
 locutor, finds that the deceased died domiciled in Scot- 
 land ; but the value of the estate in England and Ireland 
 must be stated separately, and inventory-duty paid on 
 the whole estate within the United Kingdom. 
 
 IV. Such confirmation is declared to be equivalent to a Pro- 
 
 bate or Letters of Administration gi-anted by the Prin- 
 cipal Court of Probate in England or Dublin, on being 
 sealed by the'respective Courts ; and vice vasa as to Scot- 
 land, by the Commissary endorsing a certificate Bonds 
 of Caution may be partly printed and partly written. 
 
 It is provided for by the Amendment Act of 1859, that when 
 any person or persons have made payment, by virtue of such 
 confirmation, &c., " shall be indemnified and protected in so 
 doing, notwithstanding any defect or circumstance whatever 
 affecting the validity of such confirmation," &c. 
 
101 
 
 COPT PETITION FOE DECERNITURE. 
 
 To the Honourable the Commissary of 
 The PETITION of AB; 
 Humbly Sheweth, 
 
 That the late C D died at , on or about 
 
 the , and had at the time of his {or her) death his {or 
 
 her). ordinary or principal domicile in the county of 
 (specify county ; or, " furth of Scotland;'' or, " without any fixed 
 domicile ;" or, without any known domicile). 
 
 That the Petitioner is the only brother-german and next of 
 kin (or state other relationship, character, or title'). 
 
 May it please your Lordship to decern the Petitioner 
 executor-dative gua next of kin to the said C D (or other 
 character'). 
 
 According to Justice, &c. 
 
 (Signed by the Petitioner or his Agent. 
 
 On the Commissary appointing the Petition to be intimated 
 and published in terms of the statute, and on the same being 
 done, the Commissaiy-clerk or his depute endorses thereon 
 the following certificate : — 
 
 Certificate. 
 I, A B, Commissary-clerk (or depute) of the county of 
 , hereby certify that this Petition was intimated by 
 affixing a copy thereof on on the , and by 
 
 being published by the Keeper of the Record of Ediotal Cita- 
 tions at Edinburgh in the printed roll of Petitions for the ap- 
 pointment of executors in the Commissary Courts of Scotland, 
 and published on 
 
 (Signed) AB. 
 
 On the lapse of nine days after the date of the above certifi- 
 cate, decemiture may be obtained, and decree-dative extracted 
 three lawful days thereafter, then the executor may proceed to 
 give up an inventory in the usual form, specifying property in 
 
102 
 
 England and Ireland {if any) separately. And it must be 
 borne in mind that, before including property in England and 
 Ii'eland, the executor must prove, by minute or otherwise, that 
 the deceased died domiciled in Scotland, and the Commissary 
 find this to be the fact, as before stated. 
 
 N.B. — It may be remarked, in regard to landed property, 
 that if the deceased survive Whitsunday, one moiety of 
 the rents of the crop of that year is personal estate. If 
 he sm'vive Martinmas, the whole rents of that crop fall 
 into the executry. Where the deceased is a liferenter, or 
 heir of entaU, and the rents are payable under instruments 
 dated subsequent to 16th June 1834, a proportion corre- 
 sponding to the period from the preceding term to the date 
 of death, is also personal. As to house property, the term's 
 rents current at the death are personal. The Apportion- 
 ment Act would appear not to apply to the rents of pro- 
 perty held by the deceased in fee simple. See Baillie v- 
 Lockhart, House of Lords, 23d April 1855. 
 
 Then follows the affidavit. As the Inland Revenue is about 
 to issue new forms of affidavit, it is unnecessary to give the old 
 form here. If the petitioner is desirous of having caution re- 
 stricted, he presents an application as follows, viz. : — 
 
 Unto the Honourable the Commissary of , 
 
 The PETITION of A B, Executor-dative 
 qua next of kin of the late C D ; 
 Humbly Sheweth, 
 
 That of this date, , your Lordship de- 
 
 cerned the Petitioner executor foresaid ; and he has since given 
 up, on oath, an inventory of the personal estate and effects of 
 the said C D at the time of his death, situated in Scotland {or 
 as the case may be), amounting in value to £ 
 
 That the petitioner is desirous of having the caution to be 
 found by him, in expeding confirmation to the deceased, re- 
 stricted, in respect {here state reasons). 
 
103 
 
 May it therefore please your Lordship, after the usual ad- 
 vertisements, to restrict and limit the amount of caution 
 to be found by the Petitioner in expeding said confirma- 
 tion to the sum of £ ; or otherwise. 
 
 According to Justice, &c. 
 
 {Signed by Petitioner or Agent.) 
 
 COPY ADVERTISEMENT. 
 
 NOTICE. — In a Petition to the Commissary Court of the 
 Commissariat of , by , executor-dative, qua one of 
 
 the next of kin of the late , craving that the caution 
 
 to be found by him, in his confirmation as executor foresaid, 
 should be restricted to £ ; or such other sum as might be 
 
 fixed ; the Commissary-depute, by interlocutor of this date 
 (here quote interlocutor) ; of which intimation is hereby accord- 
 ingly given to aU concerned. 
 
 (Signed by Procurator for Petitioner.) 
 
 (Place and date). 
 
 If the prayer of the petition be granted, the clerk issues a 
 testament-dative or confirmation. 
 
104 
 
 ADDITIONAL INVENTORY. 
 
 If Other funds have come to the knowledge of the executor, 
 he gives up an Eik, in form following, viz. : — 
 
 Additional Inventory of the Personal Estate wheresoever 
 situated, of , who died at , upon 
 
 the day of ' 
 
 Amount of the estate situated in Scotland, 
 England, and Ii-eland, given up in the In- 
 ventojy recorded in the Commissary Court 
 Books of , on the day of , £ 
 
 SCOTLAJTD, 
 
 I. — Effects undervalued. 
 
 1 . Value of the Stock of Wood given 
 up in the Inventory, Item, No. 
 , at , . . £ 
 
 Produce w hen sold, 
 
 Difference, 
 
 II. — Effects omitted. 
 1. Debts amounting to £ , ranked on the 
 
 trust-estate of , upon which a divi- 
 
 dend has been declared of 12s. p. £ 
 
 Total, . . . £ 
 
 iVote,— Inventoiy duty on the total estate on Scot- 
 land, England, and Ireland, is . , £ 
 The duty paid on the former inventoiy, 
 
 Tlie duty paid on the additional inventory. 
 
105 
 
 NEW FORM OF AFFIDAVIT. 
 
 At , the day of 1860, 
 
 lu presence of Commissary of the Commissariot 
 
 of {or Commissary-depute, nr Commissioner ap- 
 
 pointed by the Commissary, or Commissary-cleric, or his 
 Depute, or Magistrate, or Justice of the Peace, or British 
 Consul), 
 
 Appeared , one of the executors nominated by the 
 
 said deceased (fir, executor-dative qua of the deceased) 
 
 , who, being solemnly sworn and examined, depones, That 
 the foregoing is an additional inventory of the personal estate 
 in Scotland, England, and Ireland, of the said deceased , 
 
 as ascertained and discovered since the day of , 
 
 when the original inventory of the deceased's estate was re- 
 corded in the books of the Commissary Court of the Commis- 
 sariot of : That the said inventory, which is signed as 
 relative hereto, is a full and true inventory of all the personal 
 or moveable estate or effects of the said deceased , 
 wheresoever situated, already recovered, or known to be exist- 
 ing, belonging or due to him beneficially at the time of his 
 death : That the deponent has not discovered any other estate 
 or effects belonging to the deceased : And that the said estate, 
 situated in the United Kingdom, is of the value of , 
 and under the value of . All which is truth, as the 
 deponent shall answer to God. 
 
 If the additional items do not affect the duty, the additional 
 inventory may be written on unstamped paper ; If it do, the 
 stamp-duty payable will be the difference between the duty 
 formerly paid, and that on the whole amount of the estate. 
 
 For return of stamp-duty, the proper form can be obtained 
 at the Inland Revenue OflSce. This form contains all the regu- 
 lations to be observed, and full directions as to the proper affi- 
 davit for each partictdar case. 
 
106 
 
 THE THELLUSON ACT. 
 
 A trust for the accumnlation of rents wUl not be permitted 
 beyond the lives of pei-sons in existence, and twenty-one years 
 more ; and if the trust exceed that limit, it is void in toto, and 
 not merely pro tanto. This Act originally applied in Scotland 
 to moveables, Earl of Strathmore (5 W.S., 170) ; and to he- 
 ritage by the Rutherford Act, 11 and 12 Vict., c. 36, sec, 41 j 
 but it does not affect deeds before 14th August 1848. 
 
 JOHN BAXTKIt, PEINTEB, JAMEB OOTTRT, HEAD Off MOX'ND, EDISBUEOH 
 
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