Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. VII.

Nobile officium.

David Hepburn of Humbie and His Eldest Son,
v.
The Countess of Tarras and other Heirs of Tailzie

Date: 13 July 1699
Case No. No 145.

Provisions to children were to be named by certain persons appointed by the parent. These persons died. The Court took upon them the office.

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Adam Hepburn, the former Laird, did, in anno 1663, make a tailzie of his estate under clauses irritant, but made no definite settlement what should be the constant jointure of the Ladies of the family, nor how much the estate should be burdened with for providing the younger children beside the heir; but, in place thereof, named four or five friends, by whose advice and consent the said jointure and provisions should be determined, and allowing them to name successors to continue the said faculty and trust in their vice after their decease. The friends named are all deceased, without either appointing what the wives or younger bairns should have, or nominating any to succeed them, whereby Humbie finding himself bound up by the tailzie from providing his son's wife, or the younger bairns, he raises a declarator against the next heirs of entail, that seeing the first nomination did no way take effect, and it being no way reasonable that the case should be unprovided for, the thing being now devolved in arbitrium viri boni, the Lords behoved to supply that defect, and either make a new nomination, empowering them to settle, or else that the Lords take the nominees' power, and determine what shall be the quota themselves. Though there was no contradictor in the process compearing, yet I thought the affair officii nobilis, and fit to be authorized by the whole, and therefore I reported it to the Lords. Some of them thought the power and trust by the tailzie was so personal that it was wholly extinct by the nominees' death, and not in the Lords' power to meddle or supply it. And being asked, How Ladies or younger children shall be provided? They answered, That law permitted them to give a terce of the free estate, and they behoved to provide the younger children out of the excresce of what they could yearly spare of the rents of the tailzied estate, (which may hold in opulent fortunes, but not where they are no more but a commensurate aliment to the present heritor possessing,) otherwise if every fiar were allowed to give even small provisions to younger bairns, in four or five generations that would turn such a burden as in the end would absorb and ruin the estate; and though the most of tailzies have a clause for obviating this hazard, that no new provisions be contracted till the former be paid off and discharged, that they be not both as burdens on the estate at once, yet that clause being wanting here, the Lords can no more add it than they can make mens tailzies, or dispose on their properties, either by restricting or enlarging them. Yet the Lords, by a plurality of eight against six or seven, found this power was not so absorbed and extinguished by the former nominees' death, but the same yet remained with them; but did not incline to do it by a new nomination and substitution of others, but rather to appoint what should be the quota, whether a terce or less to the wives, and three or four years free rent, or a fourth or fifth of the value of the estate, or a lesser proportion, and for that effect ordained a condescendence to be given in, what may be a reasonable provision either for wives or younger children.

Fol. Dic. v. 1. p. 499. Fountainhall, v. 2. p. 60.