if A predeceased the granter, would not take under bonds of provision, Russel, M. 6372; and compare Findlay, 2 R. 909. But if a bequest of moveables is left to A, whom failing to B, and A survives the testator, he takes it, and the destination as regards B is evacuated, whereas, under a destination of heritage in the same terms, if A, after the death of the testator, does not dispose, by deed inter vivos or mortis causa, of the heritage, B, as substitute in the destination, is entitled to it. This difference arises from the principle that there is a presumption against substitution, and in favour of conditional institution, in a destination of moveable estate, whereas there is a presumption in favour of substitution, as opposed to conditional institution, in a destination of heritage. The destination, however, in a moveable succession can be so expressed as to create a substitution. Thus, a legacy may under a declaration be left to A and failing him to B, that, in the event of A surviving the testator but dying without having received payment of, or having assigned, the legacy, B will succeed thereto in preference to the nearestof-kin and the successors of A, whom the testator in that event expressly secludes from the succession to the same, Juridical Styles, vol. ii. 567. The words "whom failing" do not import a substitution in a destination of moveables, Allan, 7 D. 908; Henderson, 20 D. 473; Lockhart, 6 Pat. 31, and it has been remarked that there is only one safe formula for creating a substitution in moveables —namely, by the words "whom failing, either before or after the interest has vested," or words of equivalent meaning, M'Laren on Wills and Successions, vol. i. 632. is also a presumption in favour of conditional institution merely in destinations of mixed succession, Paul, 10 Macph. 937. In Paul, a testator disponed to A and B equally between them, and, in the case of the death of either without heirs of his or her body, to the survivor of them, his whole real and personal effects whatsoever. The Court There held that the testator having been survived by boththe share of one who died without leaving a will, and without heirs of his body, went to his heir-at-law, on the ground that, in a mixed succession, if possession be once got, and the right obtained by the disponee, there is no presumption of substitution. For the effect of the conditio si sine liberis, see Digest of Heritable Rights, 77. in joint lega. If a legacy is left to A and B, or to A and B jointly, or Jus accrescendi to A and B jointly and severally, and if both of them sur- cies. vive the testator, the legacy is divided between them equally; but if one of them predeceases the testator, the survivor takes the legacy. If, however, a legacy is left to A and B equally, or to A and B to be divided equally among them, and if one predeceases the testator, the survivor only takes one-half of the legacy, and the other half falls to the testator's next-of-kin or to his residuary legatee, Torrie, 10 S. 597. "There is," observed Lord President Inglis in the case of Paxton's Trustees, 13 R. 1191, "a rule of construction settled by a series of decisions beginning in the last century and coming down to the case of Buchanan's Trustees in 1883, to the effect that when a legacy is given to a plurality of persons, named or sufficiently described for identification, 'equally among them,' or 'in equal shares,' or share and share alike,' or in any other language of the same import, each is entitled to his own share and no more, and there is no room for accretion in the event of the predecease of one or more of the legatees. The rule is applicable whether the gift is in liferent or in fee to the whole equally, and whether the subject of the bequest be residue, or a sum of fixed amount, or corporeal moveables. The application of this rule may, of course, be controlled or avoided by the use of other expressions by the testator importing an intention that there shall be accretion in the event of the predecease of one or more of the legatees." See also Taylor, 5 R. (H.L.) 217; M'Nish, 7 R. 96; Donations mortis causâ. Haldane's Trustees, 9 R. 269; Wauchope, 10 R. 441; It may be well to point out in this connection the nature of a donation mortis causa. A donation mortis causâ was defined in Morris, 5 Macph. 1036, "as a conveyance of an immoveable or incorporeal right, or a transference of moveables or money by delivery, so that the property is immediately transferred to the grantee upon the condition that he shall hold for the granter so long as he lives, subject to his power of revocation, and failing such revocation, then for the grantee on the death of the granter.' Since the case of Morris was decided, it has been held that—(1) the donation does not require to be made under the apprehension of immediate death, it being sufficient that the donation is made in contemplation of death, and (2) that actual delivery of the subject of the donation by the donor to the donee is not necessary if the animus donandi is proved, Blyth, 12 R. 674. A donation mortis causâ made entirely for administrative purposes, or partly for administrative purposes and partly for the donee's own behoof, is not valid to any extent, Thomson, 11 R. 453; Sharp, 10 R. 1000. Deposit-receipts, bills of exchange, promissory notes, and cheques do not operate as testamentary writings, nor do they per se constitute donations inter vivos or mortis causâ in favour of the persons in whose names they are conceived failing the holder, Cuthill, 24 D. 849; Watt's Trustees, 7 Macph. 930; Miller, 1 R. 1107; Jamieson, 7 R. 1131; and Milne, 11 R. 887. Thus, in Jamieson, a husband deposited money, taking therefor a depositreceipt in favour of himself and his wife and the survivor, and it was held that the terms of the deposit-receipt did not constitute a donation, either inter vivos or mortis causâ, to the wife. But a deposit-receipt taken in the donee's name is an important element in the evidence establishing donation; see Lord President (Inglis) in Crosbie's Trustees, 7 R. 823, and Lord Mure in Jamieson, 7 R. 1131. Whilst this is the law as to deposit-receipts, bills of exchange, promissory notes, and cheques, the destination in bonds, railway debentures, stock certificates, and such like documents is an operative destination, and the right to them passes to parties called by the destination on the death of the person who obtained them, Connell's Trustees, 13 R. 1175. A donation mortis causâ of moveable estate, though in value above £8, 6s. 8d., is effectual without writing, it can be proved by parole; but to the constitution of a donation mortis causâ of heritable estate writ ing is essential. To prove a donation mortis causâ of moveable estate in the general case, the evidence of the alleged donees, unless corroborated by facts and circumstances, or by other witnesses, is not sufficient, see Sharp, 10 R. 1000; Crosbie's Trustees, 7 R. 823. In Crosbie's Trustees, a deposit-receipt was taken in the name of the depositor, his sister, and her husband, "to be paid to any, or survivor, or survivors of them." After the depositor's death, the receipt was found in a room of the house of his sister, which he had been in the habit of using; and his sister and her husband deponed that the depositor had stated that he had lodged the money in bank for their behoof after his death. Holding that the terms of the deposit-receipt did not per se operate a donation in favour of the sister or her husband, and that the depositions per se of these two would not have been sufficient to instruct a donation of the deposit-receipt in their own favour, the Court yet decided that it was not necessary for them to prove delivery of the deposit-receipt, and that their evidence, as corroborated by the facts and circumstances of the case, was sufficient to instruct a donation mortis causâ of the deposit-receipt. A donation mortis causâ resembles a legacy in these respects: (a) in being revocable; (b) in being liable for the donor's debts when there is a deficit of other funds for their payment; (c) in not affecting either legitim, V. Reservation of liferent by testator. VI. Clause dispensing : jus relictæ, or jus relicti; and (d) in being subject to legacy duty but a donation mortis causâ differs from a legacy (a) in not requiring writing for its constitution if the subject of the gift is moveable, although exceeding £8, 6s. 8d. in value; and (b) in being preferable to legacies, see Lord Deas in Morris, 5 Macph. 1036, and Lord Advocate, 11 R. 541. V. RESERVATION OF LIFERENT BY TESTATOR.-Without this clause the testator has full power over his estate. VI. CLAUSE DISPENSING WITH DELIVERY.- Although with delivery. this clause is invariably inserted in formal testamentary writings, such writings do not require delivery to make them effectual. VII. Consent to registration. VIII. Testingclause. Confirmation of executors. How an executor-nomi VII. CONSENT TO REGISTRATION.-By this clause the granter consents to registration for preservation. VIII. TESTING-CLAUSE.-This clause is in the usual terms. See as to privileges of testamentary writings, p. 41. To the completion of an executor's title confirmation is necessary. Confirmation is a decree of the sheriff in favour of an executor or executors, by which the appointment to the office is confirmed, and power given to recover and distribute the estate for all interested in it under a testament or by the laws of intestate succession, Ersk. 3, 9, 27. Both executors-nominate and executors-dative, without confirmation, have power to sue for debts due to the deceased, but they cannot obtain extract of a decree, or enforce payment, or give a valid discharge until they are confirmed in the office. To obtain confirmation an executor-nominate produces the testament, an inventory of the whole moveable estate confirmation. of the deceased, and oath that the inventory is correct, to nate obtains |