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Scottish Court of Session Decisions >>
Muirhead and James Hill v George Muirhead. [1709] 4 Brn 729 (26 January 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040729-0229.html Cite as:
[1709] 4 Brn 729
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Muirhead and James Hill v. George Muirhead
Date: 26 January 1709
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Sir Robert Grierson of Lagg grants a bond to umquhile George Muirhead, for 7,500 merks, payable to himself, while on life; and, failing him, to Robert, Samuel, and George Muirheads, his sons; and, failing one of them, to the two survivors, equally betwixt them; and, failing of two, to the third surviving; and to Isobel, Jean, and Agnes Muirheads, his daughters, equally amongst them.
Two of the sons die before the father, and then he dies. One of the daughters being married to Mr James Hill, they pursue Lagg for a fourth part of the sum. George Muirhead compeared, and alleged, That, his two brethren being dead, their half of the sum accresces and belongs to him by the substitution: so that there seems to be no more to divide betwixt him and his three sisters, but the other half; which he is content they have their share of. And to interpret the clause, That the whole sum of the bond divides among them, is most incongruous, and inconsistent with the rest of the members of the tailyie, by the conception whereof, he had the third, though both his brethren had lived and in case of any of their decease, he fell the half: whereas, by this distorted interpretation, he is put in a much worse case, and gets only a fourth. And who can convincingly believe that his father, who, in the first branch, gives him a third, and in the second a half, will, in the third rank, reduce to a fourth?
Answered,—The clause is as plain as the sun, that, if two of the brothers die, the third that survives is called to no more but a third share with his three sisters, who are conjuncti tam re guani verbis: and we are not to ask the reason, as if we were to frame it anew, but only to see if ita scriptum sit that the surviving brother and his three sisters shall come in equally. And the father being master of the sum, he had the free disposal of the same, though it happens eventually to restrict and curtail his son's former right.
Replied,—That he being called primo loco, the ordo charitatis prefers him before those called in a posterior rank: and, when substitutes are put by themselves, and others conjoined and brought in by a separate sentence, those so conjoined get but one share, sec. 6, Institut. de Hœred. Instituend. as for example, Titius hœres esto, Seius et Mœvius hœredes sunto. Titius sentissem feret; and the other two get but the remanent half. And, by his two brothers' death, there was a jus quœsitum to him of their half; which the sisters could lay no just claim to, but he must carry that jure prœcipui, and come in with his sisters for a fourth part of the other half.
The Lords found it was acknowledged, on both sides, that the two sons died before the father; and so their substitution never taking place in their person, it could not transmit to George, the survivor; and it comes to be all one as if the other two had never been named: and so found the whole behoved to be divided betwixt the surviving brother and his three sisters; and he could only crave a fourth share of the whole: whereas, if his brothers had survived the father, by which he got a jus quœsitum to their parts, it might have been otherwise.
