Scottish Court of Session Decisions

The parties to this Special Case were (1) Thomas Hodge, executor of the late Peter Hodge, and factor loco tutoris to Peter Hodge's son, and (2) Mrs Helen Duncanson or Hodge, Peter Hodge's widow. At the death of Thomas Duncanson, Mrs Peter Hodge's father, intestate on 20th Dec. 1871, his estate consisted of (1) certain house property in Alloa in which his widow was liferented, (2) a bond and disposition in security for £900, and (3) personal estate worth about £1600. Mr Duncanson left three children and a widow. His widow took one-third of the moveables, her liferent of the Alloa subjects, and her terce of the £900 bond. There was no dispute as to her rights, and she was therefore not a party to the present case. Mr Duncanson's eldest son, J. J. K. Duncanson, M. D., collated his father's heritage, and thereupon each of Mr Duncanson's three children became entitled, subject to their mother's admitted rights, to (1) One-third of the fee of the Alloa subjects, (2) One-third of the bond for £900, subject to old Mrs Duncanson's terce, and (3) One-third of the moveables after payment therefrom of the deceased's debts and of old Mrs Duncanson's jus relictœ. Accordingly Mrs Helen Duncanson or Hodge (the second party), as one of the three children, had vested in her immediately on her father's death, or at least from the date of the collation by Dr Duncanson, one-third of the Alloa subjects, one-third of the bond for £900, and one-third of the personalty after paying debts and the widow's jus relictœ.

Before Mr Duncanson's estate was divided, Peter Hodge, the husband of his daughter Mrs Helen Duncanson or Hodge, the second party to this case, died intestate on 14th July 1872, and Thomas Hodge, the first party, was thereupon appointed executor and factor loco tutoris to the only child of that marriage. In dividing Mr Duncanson's estate the share which fell to Mrs Hodge (including the collated heritage, the bond, and the moveable estate) was dealt with as moveable as regarded her succession thereto, and as having passed to her husband jure mariti, and was thus included in the inventory of her husband's personal estate. The collated heritage had not been disposed of. The second party thereafter claimed that her share of the collated heritage and of the bond had been improperly included in her husband's estate, both being in point of fact heritable, the first being heritable and remaining heritable in her person, and the second heritable as between her and her husband under the Titles to Land Consolidation Act of 1868, sec. 117.

This Special Case was therefore adjusted, in which the questions submitted were as follows:—“(1) Is the share of the said collated heritage moveable, and did it pass to the deceased Peter Hodge jure mariti? (2) Was the interest of the second party in the said bond and disposition in security moveable as between her and her husband, and did it pass to him jure mariti? (3) In the event of the foregoing questions or the second question being decided in favour of the first party, will he be justified as factor loco tutoris foresaid in paying the expenses of this case out of the fund in dispute?”

At the discussion the point as regarded the collated heritage was not argued on behalf of the first party, as he admitted that collation did not alter the character of property unless it was actually sold.

Argued for the first party—The Titles to Land Consolidation Act 1868, sec. 117, provided that heritable securities should remain heritable as between husband and wife only where the security “is or shall be conceived in favour of the wife” or the husband, as the case might be; here it was not so, for the wife succeeded to the share of the bond ab intestato, and the ordinary rule under the statute applied, and the bond was moveable.

For the second party—It was provided in the same section of the statute that except in the excepted cases heritable securities were to be moveable and were to belong to the executors of the creditor “in the same manner and to the same extent and effect as such security would under the law and practice now in force have belonged to the heirs of such creditor”—that is to say, the bonds were to belong to the heirs as the law then was. It therefore made no difference whether the bond was actually conceived in favour of the wife or whether she succeeded to it as heir ab intestato; she was to succeed to it as she would have under the law and practice at the date of the Act.

The 117th clause in the Titles to Land Consolidation Act 1868, after providing that heritable securities were thereafter to form moveable estate except where conceived in favour of heirs excluding executors, proceeded, inter alia—“Provided that all heritable securities shall continue and shall be heritable quoad fiscum, and as regards all rights of courtesy and terce competent to the husband or wife of any such creditor, and that no heritable security, whether granted before or after the marriage, shall to any extent pertain to the husband jure mariti where the same is or shall be conceived in favour of the wife, or to the wife jure relictœ where the same is or shall be conceived in favour of the husband, unless the husband or relict has or shall have right and interest therein otherwise.”