Scottish Court of Session Decisions

James Little, writer in Annan, and his spouse Mrs Jane Little, by mutual disposition, dated 11th August 1853, bequeathed to their daughter Mrs Janet Little or Wilkin and the children of her body a small estate called Guysgill, in the shire of Dumfries. The testators also bequeathed to their daughter Janet and to their other three daughters, equally among them and the children of their bodies, the whole of the rest of their means and estate, including certain other heritable subjects in Annan.

James Little died on 18th November 1854.

Thereafter Mrs Janet Little or Wilkin took, as disponee under the said mutual disposition, the Guysgill property and the one-fourth share of the other heritable subjects in Annan. She died intestate in November 1857, survived by her husband Herbert Wilkin, and also by three children, Alexander Wilkin, Mrs Barbara Wilkin or Watt, the pursuer of this action, and Thomas Wilkin, the defender, each of whom was entitled by their grandfather's settlement to one-third of the properties disponed to their mother as heirs of provision of her.

After Mrs Wilkin's death in 1857 her husband Herbert Wilkin drew the rents of the Guysgill property and one-fourth of the rents of the Annan property, and continued to do so down to his death in 1877.

By will he left his whole estate to his son Thomas Wilkin, the defender of this action.

The present action of count, reckoning, and payment was raised by Mrs Barbara Wilkin or Watt, as an individual, and as executrix-dative of her brother Alexander (who died in February 1879), against Thomas Wilkin, as executor of his father Herbert Wilkin, concluding for an accounting of Herbert Wilkin's intromissions with the rents of the estate of Guysgill from 1857, the date of his wife's death, to the date of his own death in 1877, in order that the proportion of the rents due to the pursuer, and as an individual and as executrix-dative, might be determined.

The pursuer averred that though her father Herbert Wilkin drew the whole rents of the lands of Guysgill after his wife's death, and also one-fourth of the rents of the Annan property, and appropriated them to his own uses, his right of courtesy as regarded Guysgill, if any existed, extended only to one-fourth part of the

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rents, his wife having got the property by singular title, and her interest, in the event of her father dying intestate, was limited to one-fourth pro indiviso of the said subjects. The pursuer further averred that she and her brother Alexander being, from and by their mother's death in 1857, part-proprietors of Guysgill, were entitled as such to one-third each (or at least one-third of three-fourths) of the rents, which were estimated to amount to £30 per annum, but that the defender refused to acknowledge their claim.

The defender averred that the share of estate that Mrs Wilkin got from her father James Little was less than she would have succeeded to if there had been no settlement; that his father Herbert Wilkin drew the rents in virtue of the courtesy of Scotland, and expended a large sum in the maintenance of the pursuer, and that no sum existed with reference to which there could be any accounting.

The pursuer pleaded—“(1) The defender, as executor of the late Herbert Wilkin, is bound to hold just count and reckoning with the pursuers for the said Herbert Wilkin's intromissions with the rents of the said Guysgill subjects from 23d November 1857 till 4th April 1877, and to make payment to them of two-thirds of three-fourths thereof, with interest thereon as claimed, with expenses. (2) The late Mrs Wilkin being one of four co-heiresses, and having taken the Guysgill subjects by singular title, the said Herbert Wilkin's courtesy extended only to one-fourth thereof, being the share in which his wife was alioquin successura, and which she may be held to have acquired præceptione hæreditatis.”

The defender pleaded—“(2) The late Herbert Wilkin having been entitled to the rents in question by virtue of the courtesy of Scotland, the defender is entitled to absolvitor.”

The Lord Ordinary ( M'Laren) on 3d June 1885 pronounced the following interlocutor:—“Finds that the father of the pursuer and the defender was only entitled to courtesy out of one-fourth pro indiviso of his wife's estate, and that the pursuer is a creditor of her father's representatives for the surplus rents of her mother's property not falling within said right of courtesy: Finds, accordingly, that the defender is liable to hold count and reckoning with the pursuer, as concluded for, and appoints him to lodge an account of his intromissions in ten days.

“ Opinion.—The pursuer Mrs Watt is one of the three children of Herbert Wilkin and Janet Little, his spouse. Alexander, deceased, and the defender Thomas, are the two other children, and the pursuer is Alexander's executrix. The three children were their mother's heirs of provision in the lands of Guysgill and others, and their father (who survived his wife, but is since deceased) drew the rents of this small property during his survivance by the title of courtesy. In the present action the pursuer disputes her father's right to courtesy, and claims from his son and representative an accounting for the uplifted rents. The point may be stated in a sentence. Janet Little, the mother, was one of four daughters, and she acquired the property from her father by deed. She might have served herself heir-portioner to her father to the extent of one-fourth pro indiviso; but as regards three-fourths pro indiviso Janet Little had no title whatever except her father's disposition. It is therefore contended that as regards three-fourths of the property Janet Little's title was one of conquest, from which the husband's courtesy is excluded. I am of opinion that this conclusion is well founded. Courtesy extends only to so much of the estate as the wife acquired præceptione hæreditatis. The case of Primrose and the other cases cited do not, and indeed could not, in principle, put the right of courtesy on a higher platform. It is alleged by the defender that James Little, Janet's father, divided his heritable property amongst his four daughters by giving separate subjects to each, together with an equalising portion in money. The fact may be so, but in my apprehension it is a fact which does not enter into this question. James Little had the power of excluding or restricting the courtesy in express words. Nothing is more usual in testamentary gifts to daughters than a clause excluding the husband's rights. Having this power, James made a provision to his daughter Janet in a form which makes the greater part of it conquest, and it lies with the defender, the party setting up the title of courtesy, to show cause why courtesy should come out of an inheritance to which no such right is attached by law. He cannot found on the will of James Little, because Mr Little expressed no wish on the subject, and he cannot found on the rule of law if my opinion on this subject is correct. I must therefore find the defender liable to account as concluded for.”

The defender reclaimed, and argued—That Mrs Wilkin, instead of getting one-third of her father's universitas, got the Guysgill estate, which was less in value than her proper share of his universitas. Her husband would have been entitled to courtesy on one-third of the universitas, and was therefore entitled to the whole rents of Guysgill, which was less in value than the one-third. The present case was on all-fours with that of Primrose, M., App., voce “Courtesy”—See also Hailes, vol. i, 458. The true test in courtesy is infeftment. As the property taken by disposition was not the one Mrs Wilkin would have succeeded to, the question came to be, Did courtesy apply? and this the case of Primrose answered in the affirmative.

Authorities— Lawson v. Gilmour, 1709, M. 3114; Hodge v. Fraser, 1709, M. 3119; Paterson v. Ord, 1781, M. 3121; Knight, 1786, M. 8715; Sandford, vol. ii., 117 and 118; Clinton v. Trefusis, December 18, 1869, 8 Macph. 370.

Replied for respondent— Primrose's case only decided that when there was a subject which might be served to by a daughter, her husband should not lose his right of courtesy to the lands truly coming to her præceptione hæreditatis. The husband can onlyget courtesy on the lands to which his wife has succeeded præceptione hæreditatis. It did not matter how the title was made up if the subject was a proper hæreditas. The distinction lay between service and disposition. Stair (ii. 16, 19) said courtesy existed where there was a proper præceptio. Guysgill could not be called a hæreditas, as Mrs Wilkin could only have succeeded ab intestato to one-third; to the remaining two-thirds she succeeded by another title; therefore to the one-third alone courtesy applied, and on principle it could not be extended further.