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

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gefs, in the right of his ancefto-r. Neither the heir of
conqoeft, nor of tailzie, has right to heirfhip-moveables.
8. As to fucceflion by deftination, no proprietor can
fettle any heritable ertate, in the properform of ateftament;
not even bonds fecluding executors, though thefe are not
heritable ex fua natura: But, where a tellament is in
part drawn up in the ftyle of a deed inter vivo/, fuch
part of it may contain a fettlement of heritage, though
executors ftiould be named in the teftamentary part.
The common method of fettling the fucceffion of heritage
is by difpofition, contraft of marriage, or Ample procu¬
ratory of refignation : And, though a difpofition fettling
heritage Ihould have neither precept nor procuratory, it
founds an adtion againft the heir of line to complete his
titles to the eftate ; and thereafter divert himfelf in favour
of the difponee. The appellation of tailzie, or entail, is
chiefly ufed in the cafe of a land eftate, which is fettled
on along feries of heirs, fubftituted one after another.
The perfon firft called in the tailzie, is the inftitute; the
reft, the heirs of tailzie, or the fubftitutes.
9. Tailzies, when confidered in relation to their feve-
ral degrees of force, are either, 1. Simple deftinations :
2. Tailzies with prohibitory claufes. 3, Tailzies with
prohibitory, refoiutive, and irritant claufes- That is a
fimple deftination, where the perfons called to the fuc¬
ceflion are fubftituted one after another, without any re-
ftraint laid on the exercife of their property. The heirs,
therefore, fucceeding to fuch eftate, are abfolute fiars,
and confequently may alter the deftination at pleafure.
10. In tailzies with claufes prohibitory, e.g, declaring
that it ftiall not be lawful to the heirs to contraft debts
or alien the lands in prejudice of the fucceffion, none
bf the heirs can alien gratuitoufly. But the members of
entail may contradl debts which will be effedtual to the
creditors, or may difpofe of the eftate for onerous caufes.
In both thefe forts, the maker himfelf may alter the
tailzie; except, 1. Where it has been granted for an one¬
rous caufe, as in mutual tailzies; or, 2. Where the ma¬
ker is exprefsly difabled, as well as the inftitute or the
heirs.
11. Where a tailzie is guarded with irritant and refo¬
iutive claufes, the eftate entailed cannot be carried off by
the debt, or deed, of any of the heirs fucceeding thereto,
in prejudice of the fubftitutes. It was long doubted,
whether fuch tailzies ought to be effe&ual, even where
the fuperior’s cbnfent was adhibited; becaufe they funk
the property bf eftates, and created a perpetuity of life-
rents. They were firft explicitely authorifed by 1685, c.
22. By this ftatute, the entail muft be regiftred in a
fpecial regifter eftabliflhed for that purpofe ; and the irri¬
tant and refoiutive claufes muft be inferted, not only in
the procuratories, precepts, and feifins, by which the
tailzies are firft conftituted, but in all the after convey¬
ances thereof ; otherwife they can have no force againft
lingular fucceflbrs. But a talzie, even without thefe re-
quifites, is effedtual againft the heir of the granter, or a-
gainft the inftitute who accepts of it.
12. An heir of entail has full power over the entailed
eftate, except in fo far as he is exprefsly fettered ; and as
entails are an unfavourable reftraint upon property, and
a frequent fnare to trading people, they are JlrittiJJitni
w.
juris; fo that no prohibition or irritancies are to be infer¬
red by implication.
13. Anhtir, who countera&sthcdireftions of thej^ilzie,
by aliening any part of the eftate, charging it with debt,
&c. is faid to contravene. It is not the fimple contrac¬
ting of debt that infers contravention ; the lands entailed
muft be aftually adjudged upon the debt contrafled. An
heir may, where he is not exprefsly barred, fettle ration¬
al provtfions on his wife and children, without incurring
contravention.
14. When the heirs of the laft perfon fpecially called
in a tailzie come to fucceed, the irritancies have no longer
any perfon in favour of whom they can operate; and con¬
fequently, the fee, which was before tailzied, becomes
fimple and unlimited in the perfon of fuch heirs. The
King may purchafe lands witnin Scotland, notwithftand-
ing the ftridtert entail; and where the lands are in the
hands of minors or fatuous perfons, his Majefty may pur-
chafe them from the curators or guardians. And heirs
of entail may fell to their vaflTals the fuperiorities belong¬
ing to the entailed eftate ; but in all thefe cafes, the price
is to be fettled in the fame rmnner that the lands or fupe¬
riorities fold were fettled before the fale.
15. Rights, not only of land-eftates, but of bonds,
are fometimes granted to two or more perfons in conjundt
fee. Where a right is fo granted to two ftrangers, with¬
out any fpecial cLufe adjedted to it, each of them has an
equal intereft in the fee, and the part of the deceafed
defcends to his own heir. If the right be taken to the
two jointly, and the longejl liver and their heirs, the fe-
veral lhares of the conjundt fiars are affedtable by their
creditors during their lives ; but, on the death of any
one of them, the furvivor has the fee of thetvhole, in fo
far as the Ihare of the predeceafed remains free, after
payment of his debts. Where the right is taken to the
two in conjundt fee, and to the heirs of one of them, he
to whofe heirs the right is taken, is the only fiar; the
right of the other refolves into a fimple liferent: Yet
where a father takes a right to himfelf and his fon joint¬
ly, and to the Ton’s heirs, fuch right being gratuitous
is not underftood to ftrip the father of the fee, unlefs
a contrary intention (hall plainly appear from the tenor
of the right.
16. Where a right is taken to a hufband and wife, in
conjundt fee and liferent, the huftund, as the perfotta
dignior, is the only fiar: The wife’s right refolves into a
liferent, unlefs it be prefumeable, from (pecial circumftan-
ces, that the fee was intended to be in the wife Where
a right of moveables is taken to hulband and wife, the
heirs of both fucceed equally, according to the natural
meaning of the words.
17 Heirs of provifion are thofe who fucceed to any
fubjedt, in virtue of a provifion in; the inveftiture, or o-
ther deed of fettlement This appellation is given moft
commonly to heirs of a marriage Thefe are more fa¬
vourably regarded than heirs by fimple deftination, who
have only the hope of fucceflion; for heirs of a marriage,
becaufe their provifions are conftituted by an onerous
contradf cannot be difappointed of them by any gratuitous
deed of the father. Neverthelefs, as their right is only
a right of fucceffion, which is not defigned to reftrain the
father