Where the will is holograph, or written by the granter himself, it does not require to he attested. 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 hle 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 executer of 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 according 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 place where it is made, can dispose of heritable property in Scotland. The last dated will is the effectual ohe, 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 Scotland out of which arises the circumstance that heritable or real property cannot be bequeathed is, that no deed conveying such property is effectual unless it be expressed in what are called " dispositive terms," or terms making over the pro perty at the moment of the signing of the deed. 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. But to accomplish the purposes of a virtual bequest, the party grants a conveyance, reserving power to alter, and dispenses with delivery of the deed. The formalities necessary to the execution of wills carrying moveables are necessary t.,9 settlements conveying heritable property, but with this difference, that in the settlement of heritable property, if the party cannot write, the deed must be executed by two notaries before four witnesses ; and in this case a clergyman cannot act as notary.
No settlement of heritable property to the prejudice of the heir-at law can be validly granted on a death-bed. Three elements are neces sary 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 executing it; and, 3rd, that he did not go to church, or to a market, unsupported, during the sixty days.