Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HEIRS-PORTIONERS.
Subject_3 There is a distinction between heirs-portioners ab intestato, and heirs-portioners provisional, with respect to the præcipuum; which, in the case of the latter, is not claimable in right of the eldest of four daughters, who were, failing a son, nominatim called to the succession equally amongst them.

James Cathcart of Carbiestoun
v.
James Rocheid of Inverleith

Date: 16 February 1773

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[Fac. Coll. VI. 143; Dictionary, 5, 375.]

Auchinleck. There is all the difference imaginable between an heir and a disponee. That here they happen to be the same persons, makes no difference: they do not claim as heirs: they must take as disponees.

Monboddo. The distinction between disponee and heir is as ancient as any in the feudal law. But here the daughters take not as disponees, but as heirs, and make up a title as heirs by service. If they had been strangers, still the eldest heir-portioner would have had a right to the præcipuum. The eldest daughter of Sir James the younger would have had a right to a præcipuum, so also the daughters of Sir James the elder.

Hailes. It is hard for judges to determine impartially upon a point of law, when, from private knowledge, they are apprised of the sentiments of the parties; which set aside the point of law altogether. The young gentlemen here know nothing of what happened before their own day. The truth is, that there are new buildings at Inverleith made by Colonel Cathcart and Mrs Rochied, exceeding the value of the old capital messuage and its appurtenances. It is impossible to suppose that Colonel Cathcart paid any more than one-fourth of the expense of those buildings. Mrs Rocheid could never mean to pay three-fourths of the expense, in order to enlarge or create the Colonel's præcipuum.

Kaimes. I cannot enter into the distinction between heirs-portioners by disposition or by right of blood. It would be difficult to make any plain man understand it; but I doubt whether the eldest heir-portioner should at any time have the capital messuage without making recompense.

President. It is too late to go into that question. The case of Peadie is in point. It was solemnly determined in 1743. The rule there established was followed in the case of Gowan against Ireland.

Alva. The right of præcipuum is not so much from the nature of the heir as from the nature of the subject.

Gardenston. In the case of proper heirs-portioners, the eldest is entitled to a præcipuum without retribution. The question is, Ought the same rule to be applied here, where to the rights of heirs-portioners is superadded a destination? Heirs-portioners succeed equally from the presumed will of the predecessor, yet the eldest has a præcipuum without recompense. So ought they to do here by the will of the testator.

Pitfour. The general strain of our old law was to give a recompense. Towers and fortalices were excepted: other houses were of inconsiderable value. But when houses came to be of more value, sometimes exceeding the value of the estate, the Court began to perceive that, to give a recompense, would be to oblige the eldest heir-portioner either to quit the house or to quit the estate. Whenever a pretium affectionis comes in, there must be arbitrary questions and doubtful decisions. Of late there has been an acquiescence of the nation in the case of Peadie, &c., as judged by this Court. As the title here is made by service, I cannot see the distinction between heirs and disponees.

Justice-Clerk. When a man makes no settlement, the courts of law suppose he meant to make his estates go in the course of common law, i. e. that the capital messuage should go to the eldest heir-portioner without recompense; but when a man gives his estate equally, courts of law must suppose that the words are to be understood according to the intention of the donor; i. e. that no heir shall have more than another.

President. Suppose that a man has five daughters, and leaves out the youngest in his settlement; or, that he has four daughters, and leaves out the eldest, will a præcipuum be due? It is dangerous to step out of the road, and to argue from the analogy of a general rule, which is admitted in itself to be arbitrary. The service is nothing. The distinction is between hæredes legitimi and hæredes destinatione.

Gardenston. Here the will of the man is just the will of the law.

Coalston. When a man, by a deed inter vivos, dispones his estate to two or more persons, the whole will be divided equally among them. In the case of heirs-portioners, practice has introduced an exception. This is necessary; because there are some subjects which cannot be easily divided; some incapable of division. Our ancient lawyers supposed that there was a recompense due when the subject admitted of division; yet it has been otherwise decided in this country, and it is of importance that decisions in an arbitrary matter should be preserved uniform. But I would not extend the decisions by analogy: a disposition to four daughters ought not to be viewed in a different light from a disposition to four sons or to four strangers. Here the daughters are not disponees, but substitutes. The counsel for Mr Rocheid incautiously admits that, if James Rocheid, younger, had had daughters, the eldest would have had a right to præcipuum. I cannot see this: it seems fatal to the plea on Mr Rocheid's part.

Kennet. The difficulty here arises from the accident of the same persons being both substitutes, and having the right of blood. If Sir James Elder had called his daughters as heirs whatsoever, a recompense would have been due; but they are called nominatim. If James Rocheid, elder, had had afterwards a fifth daughter born to him, she would have been excluded from the succession. This points out a material difference between the right of the four daughters by blood and by destination.

On the 16th February 1773, the Lords found that, in this case, no præcipuum is due, as in the case of heirs-portioners ab intestato; reserving to parties to be heard to whom the capital messuage shall be adjudged to belong.

Act. H. Dundas. Alt. A. Lockhart. Reporter, Coalston.

Diss. Kaimes, Pitfour, Gardenston, Alva, Monboddo. Mr Cathcart reclaimed: his petition was appointed to be answered. He afterwards adjusted matters with Mr Rocheid.