II. BURDENS AND CONDITIONS AFFECTING

THIS DEED.

In the preceding example of the disposition to an heir, the only burden on the right arises from the reserved power of altering, or of burdening or felling the subject; and as these are neceffary in this deed, to enable the proprietor to retain a power over his eftate, they may be confidered as making part of the fimple form of the deed. But there are usually other burdens imposed on the difponee, and I shall give examples of those that will most generally occur. They are inferted immediately after the dispositive clause.

1. Clauses Relative to the Debts of the

Grantor.

The clause relative to the debts of the grantor is a common claufe in this deed, and is thus expreйsed :

"BUT under this BURDEN and CONDITION, as it is hereby expressly PROVIDED, that the said CD and his foresaids shall, upon their succeeding to the said lands and others, in virtue hereof, be burdened with the payment of all the just and

lawful debts that shall be owing by me at the time my death."

of

Sometimes the following addition is made to this claufe:

"AND ALSO with the payment of the several sums contained in any bonds of provision already granted, or which may hereafter be granted by me, in favour of my other children, or of such legacies as I may at any time bequest; TND THAT, in so far as my moveable estate and effects shall not be sufficient for answering and paying my debts, and childrens' provisions and legacies."

This is the common form of this clause, burdening the difponee with the debts; but where. it is meant to lay the debts on the difponee, without giving him relief against the heir or executor, the burden will be thus expressed:

"BURDENING, as I hereby BURDEN the said lands, with the payment of my debts and funeral expenses, and of any bonds of provision made, or to be made by me, and of such legacies as I have given, or may at any time bequest; and which debts, provisions, and legacies, the said CD, by his acceptance hereof, binds and obliges him and his foresaids to pay, without claiming relief thereof from my heirs or executors, or from any other property or estate belonging to me: And further, if any part of the said debts, provisions, or legacies, shall have been paid by any of my heirs, the said CD, by acceptance hereof, binds and obliges

him, and his foresaids, to relieve such person or persons of the sums so paid by them.

2. Reserved Faculty, and Real Burden.

Where there is fimply a claufe burdening the heir with the debts of the grantor, there may also be a power referved of laying a certain fum upon the difponee: This will be done either by reserving a faculty to burden, or by creating the debt a real burden on the estate from the first. Where the grantor reserves a faculty to burden, it may be to create either a real or a personal burden.

Reserved Faculty of Creating a Personal Obliga tion on the Disponee.

"As ALSO, with and under this CONDITION, that by accepting hereof, the said C D shall be bound to pay to such person or persons as I shall hereafter appoint, at the first term of Whitsunday or Martinmass after my death, the sum of 1000l. Sterling, with interest thereof from the time of his entry to the said lands.

Reserved Faculty of Creating an Heritable
Security.

"RESERVING ALWAYS to myself FULL POWER

and FACULTY, at any time in my life, and even on deathbed, to BURDEN the said lands hereby conveyed, themselves, with the sum of 1000l. Sterling, to be paid to any person or persons I shall appoint to receive the same, and that at the first term of Whitsunday or Martinmas after my death, and bearing interest from that time; which sum and interest the said C D, by accepting hereof, binds and obliges him, and his foresaids, to pay in terms of the obligation to be granted by me under this reserved faculty.

Real Burden.

"BUT DECLARING ALWAYS, as it is hereby ex pressly PROVIDED and DECLARED, that the lands and others above disponed, are hereby DISPONED WITH and UNDER the express BURDEN of the sum of 1000l. Sterling, payable by the said CD and his foresaids to E F, his heirs or assignees whomsoever, against the first Whitsunday or Martinmas after my death, with the due and lawful interest thereof from that time, and during the not payment thereof; which sum I hereby expressly declare to be a real burden on the said lands, and burden this conveyance therewith. "

This burden must be repeated in the procuratory of refignation and precept of fafine, and it must enter the fafine, in order to render it

* The forms by which these faculties are exercised will be seen among the other deeds connected with this title,

real and effectual against the acts and deeds of the heir.

3. Conditions for Securing the Estate in the Line of Succession marked out by the Destination.

There may be regulations for preferving the eftate in the line of heirs marked out by the destination, without conftituting an entail; for, in the proper and technical fenfe of that word, the entail is a deed executed under the direction of the act 1685, and with all the requifites of that statute. It is by the observance of these regulations that the estate is put beyond the reach of creditors; and it is only where the deed is capable of producing that effect, that there is, properly speaking, an entail; although, no doubt, in a more general fenfe, where the deed cuts off the right of the heir at law, it may, as Mr Erskine obferves, be called a Tailzie. But it is my object to explain here every deed that falls fhort of the regular statutory entail and therefore I give examples of the following conditions, which are commonly used to secure the continuance of the deftination.