Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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Tit. 27. Of Succefjion in heritable Rights.
Singular, fuccdlbrs are thofe who facceed to a per-
fon yet alive, in a fpecial fubjed by lingular titles ; but
focceflion, in its proper fenfe, is a method of tranfmitting
rights from the dead to the living. Heritable rights de¬
fend by fucceffion to the heir properly fo Galled ; move-
able rights, to the executors, who are fometimes faid to
Be heirs in moveables. Succeflion is either by fpecial
deflination, which defcends to thofe named by the pro¬
prietor himfelf; or legal, which devolves upon the per-
fons whom the law marks out for fuccdTbrs, from a pre-
fumption, that the proprietor would have named them,
had he made a deftination. The firft is in all cafes
preferred to the other, as prefumption muft yield to
truth.
2. In the fucceffion of heritage, the heirs at law are
otherwife called heirs general, heirs whatfoever, or heirs
erf line ; and they fucceed b^ the right of blood, in the
following order. Firft, defcendents fons are prefered to
daughters, and the eldeft fon to all the younger. Where
there are daughters only, they fucceed equally, and are
called heirs-portioners. Failing immediate defcendents,
grand-children fucceed; and in default of them, great-
grand-children ; and fo on in infinitum ; preferring, as
in the former cafe, males to females, and the tideft male
to the younger,
3 Next after defcendents, collaterais fucceed; among
whom the brothers of the deceafed have the firlt
place. But as, in no cafe, the legal fucceffion of heri¬
tage k, by the law of Scotland, divided'into parts, un-
lefs where it defcends to females; the immediate younger
brother of the deceafed excludes the reft, according to
the rule, heritage defcends. Where the deceafed is him¬
felf the youngeft, the fucceffion goes to the immediate
elder brother, as being the leaft deviation from this rule.
If there are are no brothers german, the fifters german
fucceed equally; then brothers confanguinean in the
fame order as brothers german ; and failing them, fifters
confanguinean Jlext, the father fucceeds Af¬
ter him, his brothers and fifters, according to the rules
already explained; then the grand-father ; failing him,
his brothers and fifttffrs; and fo upwards, as far back as
propinquity can be proved. Though children fucceed to
their mother, a mother cannot to her child; nor is there
any fucceffion by our law through the mother of the de¬
ceafed ; in fo much that one brother uterine, i. e. by the
mother only, cannot futceed to another, even in that eftate
•which flowed originally from their common mother.
4. In heritage there is a right of reprefentation, by
which one fucceeds, not. ft om any title in himfelf, but in
the place of, and as reprefenting lome of his deceafed a-
fcendents. Thus, where one leaves a younger fon, and
a grandchild by his eldeft, the grandchild, though far¬
ther removed in degree from the decafed than his uncle,
excludes him, as coming in place of his father the ekieft
ibn. Hence arifes the diftintfticn between fuceeffion in
Capita, where the divifion is made into as many equal
parts as there are capita or 1 eirs, which is the cafe of
•heirs portioners; and fucceffion in Jlirpcs, where the re-
Vol. II. Numb. 66'. 2
W. 937
meters heirs draw no more among them than the fltarebe*
longing to their afcendtnt or Jiirps, whom they icprtfent »
an example of which may be figured in the cafe of one
who leaves behind him a daughter alive, and two grand¬
daughters by a daughterdeceafed. In which cafe the two
grand-daughters would facceed equally to thathalf which
Would have belonged to their mother had fhe been alive.
5. In the fucceffion of heirs portioners, indivifible
rights, e. g titles of dignity, fall to the ddeft fifter.
A Angle right of fuperiority goes alfo to the eldeft; for it
hardly admits a divifion, and the condition of the vaffai
ought not to be made worfo by multiplying fuperiors up¬
on him. Where there are more fuch rights, the tideft
may perhaps have her eledtion of the beft , but the younger
fifters are entitled to -a recompence, in fo far as the divi-
fions are unequal; at leaft, where the fuperiorities yield
a conftant yearly rent. The principal feat of the family
falls to the eldeft, with the garden and orchard be¬
longing to it, without recompence to the younger fifters;
but all other houfes are divided amongft them, together
with the lands on which they are built, as parts and perti¬
nents of thefe lands.
6. Thofe heritable rights, to which the deceafed did
himfelf fucceed as heir to his father or other anceftor,
get fometimes the name of heritage in a ftridt fenfe, in
oppofition to the fe'uda nova, or feus ofconqueft, which
he had acquired by Angular titles, and which defeend,
not to his heir of line, but of conqueft. This djftindtion
obtains only, where two or more brothers or uncles, Or
their iffue, are next in fucceffion ; in which cafe the imme¬
diate younger brother, as heir of line, focceeds to the
proper heritage, becaufe that defcends ; whereas the con¬
queft afoends to the immediate elder brother. It has no
place in female fucceffion, which the law divides equally
among the heirs-portioners. Where the deceafed was the
younger brother, the immediate elder brother is heir both
of line and of conqueft. An eftate, difponed by a father
to his eldeft fon, is not conqueft in the fon’s perfon, but
heritage; becaufe the fon w'ould have fucceeded to it,
though there had been no difpofition. The heir of con¬
queft fucceeds to all rights affe&ing land, which require
ftifin to perfect them. But teinds goto the heir of line ;
becaufe they are merely a burden on the fruits, not on
the land Tacks do not fall under conqueft, becaufe
they are complete rights without feifin ; nor perfonal
bonds taken to heirs fecluding executors.
7. The heir of line is entitled to the focceffion, not
only of fubjedls properly heritable, but to that fort of
moveables called heirjhip, which is the be-ft of certain
kinds. This dc6trme has been probably introduced,
that the heir might not havean i.oufe and eftate to fucceed
to, quite difinantled by the executor. In that fort which
goes by pairs or dolens, the beft pair or dozen is the
heitfhip. There is no heirfliip in fungibles, or things
eftimated by quantity, as orain.hay, current money, 6c.
To intitle an heir to this privilege, the deceafed muft
have been either, 1. A Prelate: 2. A Baron, i. e. one.
who ftoed infeft at his death inlands, though hot ere&ed
into a barony; or even in a right of annualrent: Or, 3.
A burgefs; not an honorary one, but a trading lurgefs
of a toyal borough, or at leaft one intitled to enter bur-
10 D gtls.