Where the will is holograph, or written by the granter himself, it does not require to be attested; but if it be not attested, it in the first place does not prove itself to be holograph, and the statement that it is in the handwriting of the granter must be proved by extraneous evidence to be true ; and, secondly, it does not prove its own date ; and if there be any other com peting title, it will be presumed to have been granted at such a time as will give that title the preference. If the party cannot write, he can execute a will through a notary, who receives authority in presence of two subscribing witnesses to sign for the testator, and describes the transaction in his notarial docquet. A clergyman of the Established Church of Scotland may act as a notary for the signing of a will. It is usual to nominate an executor o. the will, but it is not essential to do so ; and if there be no one named, an executor is supplied by opera tion of law. Wills executed by persons domiciled out of Scotland, if they be ao cording to the form which would carry such property in the place where they were executed, will be effectual to convey moveable property in Scotland ; but no will, whatever be the law of the where it is made, can dispose of heritable property in Scotland. The last dated will is the effectual one, and all others are considered as revoked by it in so far as they are inconsistent with it.
The peculiar feature of the law of Scot. land out of which arises the circumstance that heritable or reel property cannot be bequeathed is, that no deed conveying such perty is effectual unless it be expressed in what are called diapositive terms," or terms making over the at the moment of the signing of the deed. Thus the terms " I grant, convey, and make over," are sufficient to carry he ritage ; but the terms " I leave and be queath " are not. The peculiarity arose during the time when the holder of a fief could not part with it to another person unless that person were accepted as a vassal by the feudal superior. A con veyance not intended to take effect until after the cedenes death did not admit of the superior's using his privilege, and the method of creating a settlement of landed property was constructed on the forms by which the feudal usages were gradually adapted to the conveyance of land from a seller to a purchaser. A deed of settlement relating to landed pro perty must thus be essentially a con veyance de prtesenti, but to accomplish the purposes of a virtual bequest, the fol lowing methods have been adopted by conveyancers :-1, the granter may con vey to himself, with a " substitution" or remainder to his destined successor; 2, he may grant a direct conveyance, re serving to himself the life-rent ; 3, he may grant such a conveyance, reserving power to alter. It is of the nature of a
condeyance of land that to be effectual, delivery of the deed to the assignee, or an equivalent, must have taken place, and thus a settlement of land to be effec tual after the granter's death must have been delivered to the person favoured by it, or some one for his behoof, or must have been entered in a public register, or must contain a clause dispensing with delivery. The formalities above men tioned as necessary to the execution within Scotland of wills carrying moveables are necessary to settlements conveying herit able property in Scotland, but with this difference, that in the settlement of herit able property, if the party cannot write, the deed must be executed by two notaries before four witnesses ; and in this ease a clergyman cannot act as notary. To be an effectual deed, a settlement of landed property must also contain authority for completing the feudal title to the property, and this authority will vary with the nature of the holding. When however there is an effectually attested deed, con taining in clear terms a conveyance de pnesenti, although the formalities neces sary for completing the feudal investiture be omitted, and it be thus insufficient of itself to carry the estate, it may give a right of action to compel the heir-at-law to make it over. If the heir-at-law found upon the deed, he is by that act bound to make good its provisions in favour of all other persons. Thus, if the deed be in the form of a bequest, and in itself in capable of carrying heritage, if it convey moveable property to the heir which he would not have otherwise succeeded to, he is bound, if he take advantage of it, to fulfil its destination of the heritage. No settlement of heritable property to the prejudice of the heir-at-law can be validly granted on a death-bed. Three elements are necessary to constitute the legal exception of death-bed: 1st, that the granter was ill of the disease of which he died when he granted the deed ; 2nd, that he died within sixty days after exe cuting it ; and, 3rd, that he did not go to church, or to a market, unsupported, during the sixty days. The act 7 Win. IV. & 1 Viet. c. 26, and the other enactments relating to wills in England, do not apply to Scotland.