Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. I.

Nature and Distinctions of each.

Watson
v.
Watson

Date: 9 July 1760
Case No. No 9.

Seats in churches, taken to heirs and nearest representatives, do not follow the common rule of heritage, but divide among the nearest relations in the same degree.

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The Magistrates of Dundee, in the year 1669, empowered their kirk-treasurer to sell, at certain rates, the pews or desks which they had erected in the east kirk of Dundee. In pursuance of this commission, they were sold to different persons; and the dispositions run uniformly in the following words:

“To such a person, and his heirs, and others his nearest representatives whatsoever, residing within the town and parish, heritably; secluding his assignees.”

Three of these seats came by progress into the person of Alexander Watson; who died in 1756, without children, leaving Elisabeth Watson, the pursuer, his sister-german, and Agnes and Euphame, sisters-consanguinean. Upon his death, Elisabeth, the pursuer, contended, That she, as her brother's sole heir, was entitled to all the three seats. Her sisters maintained, That each of them had an equal right; and as there were three seats, each of them was entitled to the possession of one.

Pleaded for Elisabeth the pursuer, Seats in churches, as being res religiosæ, cannot be sold, nor be capable of property, as feudal rights. All that can be competent to any particular person, is the right of sitting in a certain seat. Though seats in churches, however, are not feudal rights, as they are held of no superior, and incapable of infeftment, yet, seeing they are servitudes, or rights affecting an immoveable subject, they are heritable rights, and such as the heir can take without a service. They must therefore go to the heir at law; and consequently, the seats in question must belong to the pursuer, who has been served legitima et propinquior hæres to her brother. The clause in the disposition, ‘to his nearest representatives whatsoever,’ must be interpreted according to law; and as the right of sitting in a particular seat is of an heritable nature, it must go to the pursuer, who is heir at law to the defunct.

Answered for the defenders, The right in question is of a very anomalous nature, and such as is not known in law. It is neither properly an heritable nor yet a moveable right; and so the rules of law, distinguishing what rights go to heirs, and what to executors, cannot apply to it. And there appears to be as good reason, that the younger children should be allowed to continue their father's possession of a seat in the church, as that the eldest son should take the whole, more especially when there is a seat for every one of them. The words of the dispositions put this past all doubt, by which the seats are given, not to the heirs entirely, but to nearest representatives whatsoever, residing within the town and parish of Dundee. This is a particular destination, and must have its effect.

‘The Lords having considered the dispositions produced, by which the seats in the church of Dundee are granted, not to heirs simply, but to the grantee, his heirs and other nearest representatives whatever, residing within the town or parish of Dundee; in respect it is not denied, that the seats in question were disponed in the same terms, and that it is not denied, that the seat possessed by the pursuer is sufficient to contain her family, assoilzied the defender; and decerned.’ See Kirk.

Act. Maclaurin. Alt. Scrymgeour. Clerk, Home Fol. Dic. v. 3. p. 266. Fac. Col. No 229. p. 421.