v.
Mrs. Marian Anstruther, Spouse of James Anstruther, Esq., Writer to the Signet, Respondent—Lushington—Bruce.
Lord Medwyn.
Subject_Succession — Collation.
Question remitted for farther consideration to the Court of Session, whether an heir succeeding to entailed estates as heir substitute by the death of a preceding heir is entitled, as one of the nearest of kin of the deceased, to participate in his moveable succession with another of the nearest of kin, without collating the entailed estates.
John, third Earl of Hyndford, by a deed of entail, dated October 27th, 1757, and recorded in June 1762, entailed the estate of Carmichael and others upon himself and the heirs male of his body; whom failing, a variety of substitutes; “whom failing, Sir John Anstruther of Anstruther, baronet, only son in life procreated of the marriage betwixt the deceased Sir John Anstruther of Anstruther, baronet, and the also deceased Lady Margaret Carmichael, his wife, my eldest sister; whom failing, Philip Anstruther, eldest son of the said Sir John Anstruther, and the heirs male of his body; whom failing, John Anstruther, second son of the said Sir John Anstruther, and the heirs male of his body;” whom failing, a variety of substitutes.
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The Earl of Hyndford having executed a trust deed, his trustees, by a separate deed of entail, dated in June 1791, and recorded in 1820, settled the lands and barony of Mauldslie upon Thomas Earl of Hyndford, then heir in possession of the estate of Carmichael under the Carmichael entail; whom failing, a variety of substitutes; whom failing, to Sir John Anstruther of Anstruther (the appellant and respondent’s grandfather); whom failing, to Philip Anstruther, the eldest son of Sir John, and the heirs male of his body; whom failing, to John Anstruther (the appellant and respondent’s father), second son of Sir John Anstruther; whom failing, to the other heirs substitute called by the Carmichael entail, and under the same limitations as contained in that entail.
Sir John Anstruther of Anstruther also, by a deed of entail, dated February 18th 1778, and recorded in March 1778, settled the lands and barony of Anstruther and others in strict entail upon himself in liferent, and Philip Anstruther, his eldest son, and the heirs male of his body, in fee; whom failing, John Anstruther (the appellant and respondent’s father), and the heirs male of his body in fee; whom failing, a series of substitutes.
Sir John further executed two separate trust deeds in 1793 and 1794, by which he conveyed certain lands to trustees to pay off his debts, and to entail the residue of the trust estate upon the same heirs, and under the same conditions and limitations, as in the deed of entail of the estate of Anstruther. The trustees accordingly executed a deed of entail in 1811 and 1812, and recorded in 1813, by which they entailed the lands of Newark and others upon Sir John Carmichael Anstruther, the appellant’s elder brother, and the heirs
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male of his body; whom failing, the appellant and the heirs male of his body; whom failing, the substitutes called after them by the entail of Anstruther.
In consequence of the death of Sir John Anstruther in 1811, and the death of Lord Hyndford in 1817, and the failure of intermediate heirs, Sir John Carmichael Anstruther, the appellant’s eldest brother, succeeded to the estates of Carmichael, Mauldslie, Anstruther, and Newark.
He died on the 28th of January 1818, and was succeeded by his son, a posthumous child, the late Sir John Carmichael Anstruther.
Sir John was born on the 6th of February 1818, and died in pupillarity on the 31st of October 1831, at Eton, where he had been placed at school. It was admitted that both he and his father were domiciled Scotsmen. He left, besides the entailed estates, a very large moveable succession, the greater part of which, amounting to more than 60,000 l., arose from the accumulated savings of the rents and profits of the entailed estates.
The appellant, Sir Windham Carmichael Anstruther, upon the death of his nephew succeeded and made up titles as heir of entail to the estates of Carmichael, Mauldslie, Anstruther, and Newark under the entails above mentioned.
He and his sister, Mrs. Marian Anstruther, were the nearest in kin of their nephew; and a question having arisen as to the right of the appellant to participate in the moveable succession, Mrs. Anstruther and her husband presented a petition to the Court of Session, praying their lordships “to sequestrate the whole funds and effects belonging to the said deceased Sir John Carmichael Anstruther at the time of his
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death, arising from savings during his pupillarity, and, in particular, the whole property as specially detailed in the foregoing petition, with all interest due thereon, with the exception of a certain portion thereof invested in Government securities.” Their lordships accordingly awarded sequestration, and appointed a judicial factor on the 24th of December 1831. 1 With the view of more fully vesting in the factor’s person a title to the executry funds, Mrs. Anstruther, with his approbation, obtained herself decerned and confirmed executrix dative qua one of the nearest in kin to her nephew, and granted to the factor an assignation of the whole funds so confirmed; and with the same view the appellant disponed to the factor such of the executry funds as were vested upon real securities pending the nephew’s pupillarity. Thereafter the factor instituted a process of multiplepoinding, to have the respective rights of the parties to the funds in his possession decided.
In this process the appellant claimed to be preferred pari passu with his sister to the whole fund in medio, on condition of collating the heritage, including heirship moveables to which he had succeeded by fee-simple titles, but not the estates to which he had succeeded as heir of entail, particularly the estates of Carmichael, Mauldslie, Anstruther, and Newark.
In support of this claim he maintained that when the heir is also one of the next of kin, and the succession of the deceased consists partly of heritage and partly of moveables, the heir is entitled to the benefit of collation, or to draw a fair and equal portion of the executry along
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1 12 S., D., & B., 185.
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with the other next of kin, if he shall collate and throw into the executry, as a common fund, such of the heritage as he takes as heir of line of the deceased, whether he takes it ab intestato, præceptione hæreditatis, or under a disposition granted mortis causâ merely.
2. That in order to entitle the heir to the benefit of collation he is not bound to collate or throw into the common fund such heritable estate, though vested in the deceased, as was held by the deceased and is succeeded to by the heir under a strict entail executed by some third party; nor was he bound to do so even where the entailed destination coincides with the line of succession at common law. And,
3. That particularly the heir, in order to have the benefit of collation, is not bound to collate or throw into the common fund such estate, though vested in the deceased, as was held by the deceased and is succeeded to by the heir under a strict entail in favour of heirs male, or any other destination inconsistent with and exclusive of the ordinary line of descent at common law.
On the other hand the respondent claimed to be preferred to the whole of the executry of which her nephew died possessed, wherever situated or however constituted, unless the appellant should collate with her his interest in the entailed estates to which he had succeeded as heir of line and of tailzie.
The Lord Ordinary having reported the question on Cases to the Court, their Lordships pronounced this interlocutor:
“The Lords, on report of Lord Medwyn, Ordinary, having considered the Cases for the parties, and whole proceedings, find, That, in this process of multiplepoinding, the claimant, Sir Windham Carmichael Anstruther, cannot claim any share in the
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executry of the late Sir John Carmichael Anstruther, without previously collating the heritage, to which, as heir of Sir John, he has succeeded: Find Mrs. Marian Anstruther and her husband entitled to expenses of process; and remit to the Lord Ordinary to proceed accordingly.” 1
Sir Windham appealed.
Sir John Campbell for the Appellant:— This case involves a point which comes before your lordships for the second time. It was agitated in the year 1795 in the Scotstarvit case, and your lordships reversed the interlocutor of the Court of Session. By that interlocutor it was found that a person under circumstances somewhat the same as the appellant was bound to collate entailed property before he could take a share in personalty. When the case came to this House the judgment was rested upon a specialty, and therefore, as far as your lordships are concerned, the general question is quite entire; nor until the year 1809 was there any decision upon it in the Court below that could be quoted against us.
We contend that when the heir is also one of the next of kin, and the succession of the deceased consists partly of heritage and partly of moveables, the heir is entitled to the benefit of collation, if he shall throw into the executry, as a common fund, such of the heritage as he takes as heir of line, whether he takes it ab intestato, præceptione hæreditatis, or under a disposition granted mortis causâ. But we also contend that
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1 12 S., D., & B., 140.
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the heir is not bound to throw into the common fund such heritable estate as was held by the deceased, and which is succeeded to by the heir under a strict entail executed by some third party; and that this applies even where the entailed destination coincides with the line of succession at common law.
The rule which is contended for on the opposite side is, that the heir of line must not only collate what he takes as heir of line, such as fee-simple lands or heirship goods, and such as he takes either by the bounty of the deceased in his lifetime or by the disposition of the law, but that he must collate his interest in the entailed estates, which he does not take as heir of line, but which he takes as heir of entail.
It is in short maintained by the respondent, that the appellant is bound to collate what he takes qua heir of entail, although it is allowed that if he were next of kin and were heir of entail he is not bound to collate, unless he were likewise heir of line.
This seems a very extraordinary doctrine, and would require very strong authorities to support it. Collation proceeds from equitable considerations, and the object is, not to make all who are to take equal sharers of the personalty, but to provide for an equal distribution of the property of the deceased among the next of kin. For that purpose you must take care that that which is brought into the common fund was the property of the deceased; you are not to take the property of a stranger which has come into the possession of any of the next of kin, because that would be to make inequality in the distribution of the property of the deceased. But where there is a strict entail the tenant in tail has not the property; nominally he is the fiar, because the
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fee cannot be in abeyance, but substantially he has a mere life interest; he is in the same situation as if there were a succession of life estates, and he cannot prevent the next heir substitute from taking under the entail. His creditor cannot adjudge the fee; he has no power over the fee either during his life or ex mortis causâ. Sir Windham Anstruther is the heir of entail; he is likewise the heir of line; but he has liabilities and he has rights in one capacity that are perfectly distinct from those he has in another. As heir of line he is entitled to the fee-simple lands of his nephew, to the heirship moveables; and if he seeks to have a share of the personalty as next of kin, he must bring these into the common fund. But his character of heir of entail is quite distinct; it is as heir of entail, and not of line, that he takes these entailed estates; he takes them per formam doni; not by any disposition of his nephew, not by blood, but by a singular title as a purchaser or as a creditor.
Now, as those entailed estates never were the property of the nephew, it does seem contrary to all equity, and to the principle of collation, to say, that in distributing the personal estate you should bring into the common fund that which never did belong to the nephew.
By the Roman, and also by the old law of Scotland which existed before the feudal law was established, all the next of kin, whether any of them were what has been since called heirs of line or not, were entitled to an equal share of the personal estate of the deceased. Collation is a burden superinduced upon the heir,—a character favoured by the law, and therefore the rule by which he is called upon to collate ought not to receive a very strict construction. If the heir of line be sole next
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of kin he takes the whole of the personalty; therefore his being heir of line is no disqualification to claim as next of kin; but where there are two who are next of kin, one of them being heir of line, the heir has the same right in that case to a moiety as in the other case he has to the entirety.
It has also been decided, that if the heir of line is not one of the next of kin he is not entitled to any share of the executry. That is laid down by Mr. Krskine in his Institutes, and was decided in the case of M’Can v. M’can. 1 It is therefore not as heir of line that he takes a share of the executry, but it is in his character of next of kin. Indeed there is not only collation between the heir of line and the next of kin, but there is collation among the next of kin; for if one of the next of kin has been advanced by the deceased, then there must be collation. In like manner, as to collation between the heir of line and the next of kin, it is as next of kin that the heir claims a share of the personal estate, and collation is merely a condition imposed upon his right as next of kin, and it is in his quality of next of kin that he has a right to make the demand. If this be so, the foundation of the doctrine which was established by the Little Gilmour case utterly falls, for that decision proceeded entirely upon this foundation, that the heir of line had no right to claim a share of the personal estate qua next of kin; that as heir of line he was cut off from all share of the personal estate, which was considered as the portio legitima of the younger children, while the portio legitima of the heir of line was the real estate, and therefore he could make no
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1 Morrison’s Dict., 2883.
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claim as next of kin in respect of the personalty, which he must purchase by collating. But what we contend for is, that although the price is collation, it is collation of what he takes as heir of line, and not what he takes from a stranger under a will. He is to collate the heritage. But what is the heritage? The heritage is what he inherits as heir of line from his ancestor; that over which his ancestor had a control, of which his ancestor could have deprived him, to which he has succeeded by virtue of blood, or to which he is indebted from the bounty of his ancestor. But how can this apply to the interest he takes in an entailed estate?
We allow that every thing should be considered as heritage of the deceased which his creditors could after his death attach, but that nothing can be considered part of his estate in which he had no interest beyond his life, and which after his death is taken by others, not as his proper representatives, but under a right altogether independent of him.
But the heir of entail is considered a mere stranger to the person to whom he succeeds. He is not liable for the general debts of the deceased; he is liable only for the debts which attach upon the entailed estate. It is the property of the deceased which is to be distributed. But the entailed estate is not his property or heritage.
Take another view:—Collation may be considered as if it were waiving the law of primogeniture, and making the real estate equally divisible as if it were personal estate. Can the heir of line be called upon to do more than waive his right of primogeniture?
Such are the general principles upon which it seems to us that this case is to be decided; and until we come to the year 1795, when the Scotstarvit case was decided
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by the Court of Session, I can find nothing in the law of Scotland, not in perfect accordance with those principles.
I now proceed to refer to some passages from the old writers, to show the distinction between heir of line and heir of entail; that the heir of entail, as such, is considered as a stranger; and that what was to be contributed was only what the heir of line took in that capacity. (He then referred, in support of the distinction between the heir of entail and of line, to 3 Stair 5. 8. and Dirleton’s Doubts, voce Heirs of Tailzie.)
To prove what according to the old law of Scotland was considered to be the subject of collation, I refer to Balfour’s Practices, p. 233, where he says, “Item, na person succidand as heir to his father or predecessour’s lands and heirschip gudes aught and suld have ony part of ony remanent moveabil gudes or geir whilk pertained to his father or predecessour the time of his deceis, except he would cast in and confer his hail heirschip gudes with the rest of the said hail moveabil gudes and geir altogether, that equal partage might be made thereof betwixt him and the rest of the bairns.” The “equal partage” is to be of the property of the father, and of what is taken as heir; clearly meaning as heir of line, such as heirship moveables; not what he takes from a stranger.
Lord Stair in his Institutes (B. 3. t.8. s. 48.) says:—
“Heirs are excluded from the bairns part, though in the family, because of their provision by the heritage, except in two cases: First, if the heir renounce the heritage in favour of the remanent bairns; for then the heir is not to be in a worse case then they, but
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they come in pari passu, both in heritable and moveable rights, which is a kind of collatio bonorum.”
By the term heritage we contend that Lord Stair means that which comes to the heir of line, and not what is taken per formam doni.
Sir George Mackenzie in his Institutes (B. 3. t. 9. s. 11.) thus lays it down:—
“But the heir has no share in the moveables, except he collate, and he consent that the rest of the children share equally with him in all that he can succeed to as heir.”
But can there be the smallest doubt that Sir George Mackenzie here uses the term “heir” as meaning heir of line? If the words “heir of line” had been here introduced, it would have been an express authority.
The next passage is from Dirleton’s Doubts, under the head “Heirs of Tailzie.” “Quæritur, if there be no heritable estate belonging to an heir of line out of which the executor may be relieved of heritable debts, will the heir of tailzie be obliged to relieve the executor of such deeds?” “Ratio dubitandi heirs of tailzie are not properly heirs but bonorum possessores. and liable to debts only in subsidium; whereas the heirs of line and executors are properly heirs; and the heir of line, if the executry be great, and more considerable than the heritable estate, may confer,” (that is, collate,) “which is not competent to the heir of tailzie or provision.”
Bankton (vol. 2. p. 385.) applies the doctrine of collation only to the heir of line. He says, “Where the eldest son succeeds as heir he cannot claim any interest in the executry, either as a share of dead’s part or legitim, because in such case the succession divides, and the heritage goes to the eldest son with
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the burden of the heritable debts, and the executry to the younger children with the burden of the moveable. But, as the eldest son is still one of the nearest in kin with his brothers and sisters, he may claim in that character a share of the whole executry with them, upon collation or contribution of the heritage, both what he succeeds to after his father’s death and what he got disposed to him before, perceptione hæreditatis, so as the whole subjects of the succession may be equally divided among them all; and which holds in all cases where the heir is in the same degree of relation with the executors; but otherwise he cannot be admitted, even though he were willing to collate, since he is not vested with the character of nearest in kin, and so cannot claim as such.” This is plainly confined to the heir of line, and to the case in which the heir of line takes in that capacity, and it is the property of the father which is to be collated, not that derived aliunde.
The last written authority upon the subject is Mr. Erskine. In book 3, t. 9, s. 3, where it is thus laid down:—
“It is only the legal heir, or the heir ab intestato, who is thus obliged to collate the heritage with the other next of kin, in order to have the benefit of the moveable succession.”
By “the legal heir, or the heir ab intestato,” he clearly means the heir at law—the heir of line. He then goes on:—
“Where, therefore, in the case of daughters only the heritable estate is settled on the eldest by entail or destination, she is entitled upon her father’s death to her first share of the moveables with the other daughters without collating that estate; for she succeeds to the heritage by provision of the father, who had
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full power over it, and that provision can in no degree affect the moveable estate, which by the legal succession descends equally to her and her younger sisters.”
Now if it had been the ancient law of Scotland that the heir of line was obliged to collate, not only what he takes as heir of line, but what he takes as heir of tailzie, would there have been nothing of that kind to be found in Balfour, or in Bankton, or in Dirleton, or in Stair, or in Erskine? Yet there is not a trace of it to be found. All that they say is, that there shall be a collation by the heir of all which he takes as heir, for the purpose of regulating the succession of the property of the defunct. According to them, therefore, that which is to be brought into the common fund must have been the property of the defunct; and it is impossible to say that the entailed property ever was his.
Such being the text writers upon the subject, I will now bring to your lordships notice all the cases (and they are not many) which have been decided in the Scotch Court upon the law of collation.
[He then referred to the cases reported in the Dictionary under the head “Collation,” till he came to the case of Scott. 1] This is the Scotstarvit case, a case in which this House reversed the decision of the Court below, and a case which is allowed by Lord Meadowbank, in the Little Gilmour case, to have been improperly decided in the Court below with regard to the doctrine of collation,—a case therefore entitled to no authority whatsoever; and till we come to the Little Gilmour case, (a case which I contend is not law, which was not appealed, which was merely the opinion of one Division
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1 15 Nov. 1787, Mor. 2379.
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of the Court of Session, without consulting the judges of the other,) there is no decision which can be considered as against us.
In the Scotstarvit case, the Court of Session, forgetting the well-known rule, that with regard to the succession to personal property the rule depends upon the law of domicile, held that it depended upon the place where the person died; and displacing the case of Ricarts, in 1720, decided, that “heirs alioqui successuri or not, and whether ab intestato or provisione hominis, must collate in order to claim any share of the moveable succession.”
There was an appeal by both parties. The question as to the general obligation of the heir of entail to collate was very learnedly argued in the papers on both sides, and I believe at your lordships bar. It was decided by Lord Thurlow, who made a speech upon that occasion. There is a traditionary account of it; but I do not feel at liberty to state the purport of it. Though we have been most anxious, and it would have been a most desirable thing for us, to obtain some notes of the speech of that learned lord, we have not been able. There were not at that period the very satisfactory means we now have of knowing what falls from the learned lords who advise your lordships House in the adjudication of appeals. We have not been able to obtain any account of Lord Thurlow’s speech; but this we know, that the appeal of the next of kin was dismissed, and that the decree whereby it was held that Miss Scott was not entitled to her share of the personal property in Scotland was reversed. Now I allow that an abundant reason for reversing must have struck Lord Thurlow the very moment the case was opened to this House, seeing the error which had been committed as to the law of
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domicile. It was necessary to go no farther than to see that the Court of Session had proceeded on a wrong foundation when they made the distinction between the personal property of David Scott situate in England and the personal property of David Scott situate in Scotland, for they were both governed by the law of the country where he was domiciled. 1
The next case is that of M’Can v. M’Can 2, in which it was held, that an heir “cannot insist for collation if he be not at the same time one of the nearest in kin.” And this I make use of to fortify my position, that where the heir of line does claim a part of the personal estate, being next of kin, he does it in his capacity of next of kin, and not as heir at law.
The next case, and which was the last before the Little Gilmour case, was that of Crawfurd v. Stuart, which was decided in the year 1794 3, the Scotstarvit case having been decided in this House in the year 1793. In this case of Crawfurd it was decided, that “an heir of entail who is one of the nearest in kin, and not the heir alioqui successurus, is entitled to a share of the moveable succession without collating;” and I am surprised to find that this is a case the other side rely upon. I rely upon it, and do so very much; for there it was held, that an heir of entail being one of the
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1 The judgment of the House of Lords, as given in the Faculty Collection and in Morrison’s Dictionary, is incorrect. The words of the judgment are these:
“That the said Henrietta Scott is entitled to claim her distributive share in the whole personal estate of her uncle, David Scott of Scotstarvit, in Scotland, without collating his heritable estate, to which she succeeded as heir, in so much as she claims the said share of the said personal estate by the law of England, where the said David Scott had his domicile at the time of his death.”
Journals of House of Lords, 11 March 1793; 1 Bell, 103.
2 28 Nov. 1787, Mor. 2383.
3 3 Dec. 1794, Mor. 2384.
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nearest of kin has a right to a share of the personal estate without collation.
These are all the decisions till we come to the Little Gilniour case 1; and although I might distinguish in several respects the present one from the Little Gilmour case, we certainly do deny the Little Gilmour to be law, and we call upon your lordships to overturn it. It is contrary to all the authorities, and to all the principles that have before prevailed in the law of Scotland; and it is entitled to the less weight for this reason, that although the case was of much magnitude it was decided by one Division of the Court, without the other judges being consulted. It was between near relatives, who might have a reluctance to continue the litigation, and it was acquiesced in. The facts were very few:
“Walter Little Gilmour, of Libberton and Craigmillar, died intestate, leaving two infant children, the parties to this action. Mr. Gilmour’s succession consisted of two large estates descending to the heir male under two old and very strict entails, of a small heritable property which had been vested in himself in fee simple, and a considerable moveable property. Upon his death it became necessary to try the question, whether the son was entitled to a share of the moveable property without collating the entailed estates.”
The entails are not set out. I believe that they were made by a direct ancestor of the claimant; and that circumstance your lordships will find seems to have influenced the opinion of the judges, although it appears to me quite immaterial whether the entail was made by an immediate ancestor, or whether it was by a collateral relation or a stranger. The case being argued, judgment
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1 13 Dec. 1809, Fac. Coll.
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was given by the Court. Lord Meadowbank first gives his opinion. He says that “the more he considered this case the more he was satisfied that it ought to be decided on what might be called popular principles.” Now I am wholly at a loss to understand what is meant by deciding a nice point of law on “popular principles.” I think this is a most inauspicious commencement of the learned judge’s argument. And he said, it ought to be decided on popular principles, “the more so that all the decisions of the Court upon similar cases had been decided upon similar principles.” (That is equally unintelligible to me.) “Whether they had all been rightly decided or not it was not necessary now to enquire. That with these views he would not search into the history of the law of collation, but would lay down the limits between four different situations in which such questions might occur, which would point out the decision which ought to be pronounced.” Now in a case where the law was to be solemnly settled for the first time I do think it would have been extremely desirable that the learned lord should have entered into the law of collation, for it would have been important to lead to the knowledge of what ought to be collated. He then goes on to say, “That, by the common law of Scotland as it had been long established, there was a difference between the heir and the rest of the executors; that the portion of the heir at common law, or, as it might be called, the portio legitima, was all the heritable property of the deceased, and the portion of the younger children was the moveable property.” I believe Lord Meadowbank was the first Scotch lawyer who ever said that the heritable property shall be considered the portio legitima of the
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heir; and he does not tell us what is to become of collaterals, when you have not the elder son and the children. He then says, “That those estates were totally separate and distinct in questions of succession. That by the common law the heir had no more right to the share of the younger children, to any part of the portio which the law assigns them, than they have to a share of what is peculiarly appropriated to the heir. That this was the most natural view of the case.” (Again I ask, What is meant by the “natural view of the case?”) “That on feudal principles the heir was the favorite of the law.” If so, the heir is very hardly used here, for although he is one of the next of kin he claims a share of the personal property without collating what he takes under the entail: it is no great favoritism to compel him to collate what he takes as heir of entail. His lordship then says, “That it naturally followed from this favor which was shown to the heir or eldest son, that if the heritage was less valuable than a share of the moveable property would be he should get a share of the moveable property, if he chose to demand it, in order, at all events, to prevent his being left in a worse situation than the younger children. That this proceeded, not from any idea that in neglecting to collate he surrendered his share of the moveables, for, strictly applied, the law would have given him more, but entirely from the favor which the feudal institutions have always shown to the eldest son. But at the same time, as he thereby encroached upon what was the share of the nearest of kin, it was but right that he should in return give them a share of his own; but in doing so it was only the portio legitima which he was bound to collate;not any property which
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he might have acquired from other quarters. That this being the general principle of the law, the next enquiry was, in what manner was that principle affected by particular destinations of property. And, first, as to this his lordship thought that in general, where there was both an heir and nearest of kin, and the heir took the estate by particular but simple destination from the ancestor, then, whatever might be the destination of the estate, still the heir must collate, if he claims a share of the moveable succession; for this plain reason, that he is asking a share of the portio legitima appropriated to the executors, and that if he avails himself of the favor which the law allows him he must pay the price which the law requires. This was the first and simplest case of collation.”
“Secondly,” his lordship said, “that where there was no heir male, or no only daughter, but several heirs portioners, a different rule would necessarily take place. In such a case the eldest daughter is no favorite of the law.” (It is very odd that the eldest daughter, being no favorite of the law, is not bound to collate, but that the eldest son, being the favorite of the law, is bound to collate.) “Both heritable and moveables are thrown into one mass, and both form the common portio legitima of all the daughters. Accordingly, where the eldest daughter has received an estate destinatione, she has rightly been found not bound to contribute any share of it when she claims her equal share of the remainder, because what remains is the common portion, and it cannot be argued, on her receiving by destination from a person entitled to bestow it an estate to which she had otherwise no exclusive right, that she should therefore lose
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what she would have otherwise had a right to as her legal portio. She takes what is specially bequeathed to her as a stranger would; not as a male heir, that takes what would at any rate have been his own exclusively. That perhaps, however, on more subtle views, it might be maintained that one was bound to collate to a certain extent, but not in the same measure as an heir male alioqui successurus.” (His lordship evidently has the case of Riccart or Riccarts in view, in which it was held, that the eldest daughter, taking a share of the moveables, was entitled without any collation.) “Thus, if there are three heirs portioners, and one of them gets the whole of the heritable property destinatione, while the moveable estate remains subject to the common operation of the law, in such case it might be argued, that if she claimed a share of the moveables she must collate one third of the heritable property, because to that extent she was the heir alioqui successurus, while, as to the other two thirds, which she received tanquam quilibet, she could not be bound to collate them. That this would perhaps be the most nice and subtle view of the case; but the plain and obvious answer would be that already noticed, which was given in the case of Riccarts, that the eldest daughter is as well entitled to take the whole tanquam quilibet, if the ancestor chooses to give it her, as a stranger would have been, if he had given it to him, which he might have done, and that the remainder of the property just continued to be what it had always been, the portio legitima of the whole of the heirs portioners, and as such subject to division among the whole.” Here again his lordship relies upon this notion, which was
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certainly only his own notion, that entail property was the portio legitima of the heir at law, or that the real estate taken by the heir of line is the portio legitima of the heir, and accordingly this formed the argument in the case of Riccarts, an argument which does not apply in the case of a male heir of line, because the moveables are not part of his portio legitima. He then proceeds— “We are not bound ex lege to produce an equality among the heirs, but only to give effect to what is clearly the meaning of the law. On the other side they seem to contend that the object is to create an equity among the heirs, and not merely to make distribution of the property of the deceased. The eldest daughter in the case supposed, which was just that of Riccarts, was entitled to say that she could not be forfeited of nor bound to collate her own third, merely because a person who had a right to do so had given her more than her own share; just in the same manner as if the dead’s part had been left to the heir, in which case he would take it tanquam quilibet, and could not on that account be compelled to renounce a share of the heritage. But this don’t touch the present question, which is not the case of an heir taking tanquam quilibet, but directly the converse.”
His lordship then goes on to say, that “a third case was, where an heir had succeeded to the heritable estate by singular titles. That our predecessors, in Murray v. Murray, found that an heir was bound to collate what he got from the ancestor whose moveables were in question, because it was a part of the estate which he would have succeeded to ex lege; the one was in some measure the price of the other, and unless he collated he could claim no share of the
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moveables. That though it was clear that a man who gets an estate from a stranger by singular titles could not claim a share of his moveables, on an offer to collate, still it would never follow that a man who gets his own estate by singular titles should thereby be deprived of his natural and inherent right to collate it, if it should appear to him to be most advisable to claim a share of the moveables. That therefore the case of Murray was rightly decided.” (So far I readily assent to the reasoning of the learned judge.)
“Fourthly,” his lordship said, “that the last case was the case now under consideration, where a man gets an estate, not only by singular titles, but under trammels imposed by his ancestors, which, if matters had been left to the common operation of the law, would have descended to him in fee simple from his own father, whose moveable succession is disputed, but which trammels he must submit to, under the pain of incurring a forfeiture, or of being found liable in damages. His own ancestors have imposed these restrictions.” (Here the learned judge seems to rely upon the peculiarity of the case, that the Liberton estate and the Craigmiller estate had descended from the immediate ancestors of the claimant, and that the entail was not by a stranger.) “There may,” he continues, “in one view be a hardship; but if he can get his estate upon no other terms, is he entitled to complain that he is not put into a better situation than he would have been in if they had not been imposed, and to put his sister in a worse situation than she would have been, in consequence of restrictions and prohibitions directed, not against her, but against himself? He has got his own portio legitima, the
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portio which the law would have given him if it had been left to its own operation; and must he not contribute that if he asks a part of the portio legitima of his sister? That the burdens on the estate may be a hardship on the heir in one sense, but that if they are so, at any rate they are beneficial hardships, for they have secured it to him. They have not taken it away; it is still the heir’s portio legitima; and if he refuses to contribute it, burdened as it is, he expressly admits that it is more valuable than that which he is demanding from the executor; and therefore it would be most unjust to listen to his claim, which would clearly be at variance with the original view of the law in introducing the practice of collation. That, in short, it was impossible to see the principle upon which the heir of an estate, who is absolute fiar, even where he does receive it under burdens, can pretend to hold it on a principle radically different from what he would hold any other estate. That on these grounds the heir of an entailed estate which would have been his ex lege if there had been no entail, that is, the heir of line of the last possessor, was bound to contribute that estate if he wished to take a share of the moveables.” (All this reasoning proceeds upon the supposition, that, according to the destination, an entailed estate is always to go to the heir of line; but it may go according to any other devolution.) “That the argument which the claimant maintained, that he had no power to collate, was one of no force whatever; that if he really could not collate, then he could not perform the only condition on which he could claim the moveables; and the restrictions of the entail were meant to fetter him, and
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not the executors. But that in truth there was nothing to prevent him from collating; that he might collate the value, or he might collate the rents; that the latter might be evicted, and why could they not be collated?
That the answer made by the heir, that he did not take as heir of line, but in virtue of a gift from the predecessor, was also insufficient. It is very true that it does so; but upon the principles of the law of collation, already explained and illustrated, still the estate which he takes is his portio legitima.” The learned judge comes at last to grapple with that objection, that the heir did not take as heir of line, but in virtue of a gift from his predecessor. How does he grapple with it? He allows the premises, but he says, “still the estate which he takes is his portio legitima.” So that the learned judge says,—for that is his notion,—that an entailed estate may be the portio legitima; but that is only his own notion, for which there is no ground. “It is the price (he says) which the law commands him to pay if he takes a share of the portio legitima belonging to the executors.” That is a gratis dictum of the learned judge; he does not state any one text of a single writer or any decision for this principle. He then goes on:
“And unless he chooses to sacrifice the one, such as it is, he cannot be permitted to touch the other. That neither could a man get out of the difficulty by lying out unentered in the entailed estate. He was not entitled to do so. He must convey his right in his own legitima portio to the executors, be it what it may, before he can claim any part of the executry, which the law declares to belong exclusively to them. On these grounds his lordship was for
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deciding in favor of the executors, and concluded his remarks by observing, that he had no difficulty in saying that the case of Scotstarvit was wrong decided in this Court, even independent of the specialty which had produced the alteration by the House of Lords; for Miss Scott was an heir portioner, and as such would not be bound to collate any part of the heritable estate, which she acquired either tanquam quilibet or as heir alioqui successurus.”
Therefore Lord Meadowbank himself shows that the Little Gilmour case is the very first in which the point was ever decided in the Scotch Court, for that the Scotstarvit case, which was contrary to Riccarts’s case, was improperly decided, and consequently this is the only case against which I have to contend.
What then is the ground Lord Meadowbank takes? Does he lay down any principle, except that of portio legitima, in which I say he is mistaken? Does he bring forward any argument to support the proposition for which he contends? I say, with all respect for the memory of that very learned and respectable judge, his reasoning is unsatisfactory. He talks of proceeding on “popular principles;” he talks of the estate being the natural estate of the heir, and in language to which no lawyer can affix any definite idea.
The other opinions were delivered very shortly. The Lord Justice Clerk, Hope, who had been counsel for Sir John Stewart, said, “that though the claimant took the estate as heir of entail, still it was his own natural estate to which he succeeded.” Now, what is the meaning of this? According to this, if the Liberton estate and Craigmillar estate had not been entailed by the immediate ancestor of the claimant, but
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by some stranger, and there had been some natural estate which had been long in the family, it would seem, according to this learned judge, that though it had been entailed, yet, being the family estate, it was natural there should be collation as to that; but that with regard to lands taken by the bounty of a stranger, as those were not the estate of the claimant, there should be no collation whatsoever. It is impossible to say here that the Carmichael estate was the natural estate of the Carmichael family. It belonged to the earls of Hyndford; they are to be considered as strangers with regard to the Anstruther family; and if the rule applies to the family estate only, I say that here there ought to be no collation. His lordship then goes on to say:
“He was also heir of line ab intestato to his father in the same estate; and it was perfectly clear that the same opinion had been entertained by the judges who decided the case of Rae Crawfurd, for the interlocutor of the Lord Justice Clerk, M’Queen, to which the Court adhered, would not have contained the qualification which it does in any other view of the case,— “in respect that Mrs. Rae Crawfurd was not heir of line, but only heir of provision;” and that if this had not been the meaning of the Court the first member of that sentence would not have been inserted. But the meaning which I attach to those words, “in respect that Mrs. Rae Crawfurd was not heir of line, but only heir of provision,” is, that this was not an estate she held as heir of line; that she was only heir of tailzie; she held the entailed estate; for that reason she was not bound to collate.
Lord Newton concurred both in the opinion of Lord Meadowbank, and in the remark on the case of
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Rae Crawfurd made by the Lord Justice Clerk, and said that this proposition was most satisfactorily made out, that the claimant as heir of line to his father must either collate his portio legitima, or abandon his claim to a share of the moveables, because, burdened or not, he had gratuitously received that estate which the law had declared to be the legal price of any such share.”
Now, where has the law declared that the collation of an entailed estate is the legal price that is paid for the privilege of claiming a part of the personal estate? I can find such an expression no where but in the mouth of Lord Meadowbank. Lord Newton then proceeds:—
“That there would be no difficulty in collating; that it was quite consistent with the rules of the law to collate the value of a property; that it could be easily ascertained; that heirs of entail were in the practice of selling their life-rents; that liferent rights might be adjudged; that tacks secluding assignees were collated, and that there was nothing in the nature of an entail to prevent a similar collation, if the heir found it for his interest to do so.”
The rest of the Court coinciding in opinion, this interlocutor was pronounced:—
“Find that Walter James Little Gilmour, heir of entail and provision to his father in the entailed estates of Craigmiller and Libberton, being also heir of line to his father, cannot claim a share of his moveable estate along with his sister without collation.”
Now, with great respect for the opinions of those three learned judges, I ask, are those reasons which they give satisfactory? Is this case to be decided on popular principles, or on the ground that this is the natural estate of the claimant, and that the entailed estate is the
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portio legitima of the heir? Those are the only reasons given, and there is no authority from any text writer, or any decision, and no principle laid down upon which that decision can be rested.
The respondents, being, I suppose, very confident in the reasoning of the judges in the Court below, have given to your lordships, in the appendix to their case, the opinions pronounced after the present case had been argued; and one would suppose from what Lord Cringletie says, that the judges had taken infinite pains,—that they had consulted all the other members of the bench, — that they had done what Lord Meadowbank said he would not do,—had studied the law of collation, and the law as it is to be found in the civil law of other countries in Europe, and that this was a very profound judgment. Now, I will read all that passed upon that occasion. “The Lord Justice Clerk.—I have perused the papers with all due attention, which argue the case on both sides remarkably well. I highly approve of the manner in which the case is argued on the part of Mrs. Anstruther. In the paper drawn for Mrs. Anstruther and her husband all the points of the case are ably and clearly discussed, and, considering it altogether, I am decidedly of opinion that Sir Windham Carmichael Anstruther is not entitled to share in the executry without collating his interest under the entails under which he now possesses the estates. Looking to the case of Gilmour, which in my opinion involves every point of importance to the decision in this case, I must say, that, from the manner in which it was decided,—from the satisfactory opinion delivered by the late Lord Meadowbank, and assented to by the whole Court,
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I cannot think of interfering with that solemn and deliberate judgment. Considering the whole authorities, and the whole stream of the decisions quoted to your lordships by the other side, I have not the slightest doubt of the correctness of the judgment then pronounced in the case of Gilmour; and the more deliberately the case is considered, the more conclusive must be the opinion which your lordships must entertain upon that judgment. I shall say no more in regard to the claim of Sir Windham Carmichael Anstruther, than that he is bound to collate before he can claim one sixpence of this executry; and here there would be no difficulty whatever as adopted in the case of Gilmour,—no difficulty in Sir Windham contributing the rents of the estates, making them a common fund, and then claiming as next of kin; being heir of line and heir of entail he is bound to collate before he can claim in the executry.”
Now, that is the whole of the judgment of the Lord Justice Clerk, and I must say, with great deference to that very distinguished judge, that it is not one of the most favourable specimens of judicial reasoning.
“ Lord Glenlee.—I am of the same opinion as your lordship. The case is the same as that of Gilmour. Sir Windham Carmichael Anstruther must collate his life interest in the heritable estates before he can claim in the executry fund.”
“ Lord Cringletie.—It appears to me to be quite unnecessary to add any thing to what has already been so well said. I entirely concur in the opinion expressed, that Sir Windham cannot share in the executry till he collates.”
“ Lord Meadowbank.—If there is any point solemnly
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and deliberately laid down in the law of Scotland, I am of opinion that this is; and it would be paying no compliment to the decision given in the case alluded to, to attempt to shake the principle established by saying one word more on the subject.”
“The Dean of Faculty trusted that their lordships would find his client entitled to expenses.”
“The Lord Justice Clerk said, in his opinion there could be no doubt whatever. He would remit to the Lord Ordinary to proceed accordingly, and find the claimant Sir Windham Anstruther liable in expenses.”
That is the whole which passed.
Now, I venture to say, that neither in giving judgment in the Little Gilmour case, nor in giving judgment in this case, do the learned judges grapple with the difficulties of the case. They give no reason whatever why the heir of entail, being likewise heir of line, should be compelled to collate the entailed estates, which he would not be compelled to collate if he were only heir of entail. I find no dicta nor decisions to fortify that which is the foundation of the judgment, that the entailed estate is the portio legitima of the heir of entail; and if that were, let my learned friend answer this question. Lord Meadowbank says, that the entailed estate is the portio legitima of the heir of entail. If it were so, why should he, having his portio legitima in the entailed estate, encroach on the portio legitima of the children—the personal estate, even under the condition of collating it? That shows that the entailed estate is not the portio legitima; I contend that a judgment which rests upon such a foundation cannot stand.
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Mr. Murray followed on the same side, arguing the general principles and commenting on the cases. On coming to that of Rae Crawfurd, he proceeded thus:—Here I wish to call your lordships attention to the observations which were made when the case of Rae Crawfurd was decided. That case is of peculiar importance, because it was decided in December 1794, after the case of Balfour v. Scott had been reversed in this House. It was therefore determined after there had been considerable discussion, and came under the view of the Court only about a year after the judgment of this House had been pronounced. In that case Mrs. Rae Crawfurd succeeded to an estate of a considerable value under a strict entail which had belonged to her elder brother. There was another brother who was heir of line, and collated, and also another sister who claimed Mrs. Rae Crawfurd’s share, and wished to exclude her unless she collated the entailed estate. The Court held that under these circumstances she was not bound to collate the entailed estate. Why? Because she was not heir of line. We say, as it is thus clear that if another person had been heir of line he would not have been compelled to collate, so we cannot be in a worse position, because we stand in the character of heir of line. The observations of the judges on the bench are important to this point. They say Mrs. Rae Crawfurd is a stranger to her brother’s heritable succession, being neither his heir at law, nor taking any thing under any deed of his, and therefore the law of collation cannot in any shape apply to her. She succeeds to the estate of Milton under a strict entail executed by their common ancestor, and not as representing her deceased brother who himself was only an heir of entail, and
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it is no reason for excluding her from a share of his moveables that she takes an estate to which, in consequence of the destination of the tailzie, he was a prior substitute to her.
Lord Brougham.—How would it be, supposing instead of being heir of entail, she was heir under a devise, as heir provisional by force of the settlement?
Mr. Murray.—I apprehend that we must separate the two characters, and if I give up every thing I succeeded to as heir of line, I am entitled to take in the stranger character of heir male. [He then commented on the case of Gilmour, and particularly on a statement by the respondents, that one of the estates did not flow from a direct ancestor, and referring to the printed pleadings, he proceeded.] Now so far as that might be supposed to make any difference in the case, or to have led to a more enlarged view of the legal question, it was not under the consideration of the Court; for though the case is reported at very great length in the Faculty Decisions, and is fully argued in the Informations, there is no allusion in either of them to any such distinction in respect of the estates, which was absolutely necessary to bring out the full extent of the legal question.
Lord Brougham.—I have read with great care the judgment of Lord Meadowbank. It is a very able judgment; but what I do not understand is, that he decides on popular principles. Instead of a popular view, it is a highly learned and technical view he takes of the subject. I apprehend he means to refer to the portion taken by the heir instead of confining himself to what is his natural right,—natural or feudal principles; he does not use the word natural in its popular sense, but his natural right, assuming the feudal views to
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be the law of Scotland (which is the most unnatural law that ever existed). But he says such is the right according to such principle that is what he means by popular principles, that there is a sort of crude equity governing the case; and by legitima portio he means to say in popular language, that the real estate is the legal estate of the heir, while the moveable estate is the legal estate or legitima portio of the younger children.
Mr. Murray.—I apprehend that what his lordship referred to as popular and natural principles were, that the estate had descended from father to son, as it would have done according to the common and popular rules. 1
Dr. Lushington for the respondents.—The question which is now mooted at your lordships bar is one that is admitted to have been decided in the year 1809 by the Court of Session in Scotland, a decision from which there was no appeal, notwithstanding it involved a very considerable property; but after the expiration of twenty-six years the appellant seeks to impeach the validity of that decision, and to show that the principles on which it was founded are not tenable according to
_________________ Footnote _________________
1 In the course of Mr. Murray’s speech the following observations were made as to referring to living authors on law. Mr. Murray said: there has been reference made in the respondent’s case to the authority of living writers, but I apprehend that the work of a living author ought not to be quoted.
Lord Brougham.—There cannot be a stronger expression of that than that your illustrious kinsman, Lord Mansfield, would not allow Mr. Justice Blackstone’s Commentaries to be quoted. He said, “I hope the day is far distant when it will be regular in any way to quote Mr. Blackstone’s Commentaries,” meaning after his death. They used to quote, and I have done it myself, “a certain book” upon shipping, before the learned author, who at that time became a learned judge, but we never called it “Abbot on Shipping,” and he always said there were two good arguments against quoting it, one, that it was good for nothing, and another, that the author, whoever he was, was still alive.
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the law of Scotland. I think that the very first observation which must occur to your lordships is, that those who in a question of this particular kind bring forward this appeal after such a lapse of time, and after a decision of so much consideration had remained undisturbed, have a very heavy onus cast upon them; because, unless your lordships be perfectly satisfied that that decision was erroneous, nothing could be more dangerous than to disturb the course in which property to so large an amount has hitherto flowed; for I need not tell your lordships, that if there be any principle more established than another, it is that with relation to the succession of property; for when once you find that a course has been established, it is not competent to dip into antiquity for the purpose of giving reasons why a contrary course ought to have taken place, or by ingenious reasoning to endeavour to show that any other form of succession would have been more advantageous to people at large.
Lord Brougham.—I observe that the judges in deciding this case merely express their concurrence in the somewhat more expanded statement of the Lord Justice Clerk, but they rest their judgment almost entirely upon the authority of the Little Gilmour case. Are we not then to suppose the Little Gilmour case to be as much under appeal, though not as regards the effect of it, but as regards the ratio decidendi, as if that case were now before us?
Dr. Lushington.—I conceive that the judges thought the case exhausted by the Little Gilmour case, and that the judges in that case had said all they would have wished to have said; and that not only all the arguments
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at the bar were exhausted, but that every thing which could be said was to be found embodied in the opinion of Lord Meadowbank.
In regard to the case of Scotstarvit, I hold it a most important one, and an authority for the decision of the Little Gilmour case, and also of the present case; and as to the reversal by your lordships, that depended on totally different principles, and does not in the slightest degree destroy the application of the case of Scotstarvit to the present; for the result of that judgment was, that entailed property ought to be brought into collation, and the reversal in no way affected that decision. The appellant has contended that there is no authority in the law of Scotland supporting the decision in the case of Little Gilmour, and he appears rather to attribute that decision to Lord Meadowbank’s indulgence in his own invention, and to his having taken up a system of law not known in the law of Scotland. But we maintain that all the authorities which have been cited support the principle so laid down. It is true that no case is to be found in which it was specifically decided that an heir of entail, being at the same time heir of line alioqui successurus, was bound to collate his entailed property. On. the other hand there is not any case, or the dictum of any text writer, impugning the doctrine adopted by the Court in the case of Little Gilmour; and unless that doctrine is palpably erroneous, I submit that, in the absence of all authority, the doctrine laid down by that case is not to be shaken on very slight grounds. [Dr. Lushington then stated the facts of this case generally; and afterwards proceeded thus.] A good deal of argument on the
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other side has depended on using expressions not applicable to the existing state of facts; what we contend is this, that the heir of line being also heir of entail of property of which the intestate was possessed, and next of kin also, cannot claim a share of the personalty without collating not merely the estate he received ab intestato, but also the entailed estate.
Lord Brougham.—A man takes an estate by devise or disposition as absolute fiar to which he was alioqui successurus. Now supposing no disposition had been made in his favour, I apprehend in Scotland, at least in England, he would take an estate by descent and not by purchase. In that case I can perfectly understand how, in order to have the benefit of the executry, he must collate the corpus of that estate; but if instead of taking a fee-simple by disposition or devise, he takes a fee-tail, or rather an estate for life, (for, although you call it a fee in Scotland, he takes a life estate, or, as you call it, a succession of fees, but which are limited as to enjoyment, and bound as to descent, and which he cannot part with or burthen,—so that he truly takes a life estate, to which you still call upon him, on the same principle, to collate;) what is he to collate? Not the corpus, for he has not that to collate; but you call upon him, by analogy to the corpus, to collate so much as he takes,—so much of the corpus as is common to both situations, both to his tailzied title, and to that he takes alioqui successurus; and you say that he must collate that life interest. That is what I understand to be your argument. The question is, can that argument be supported upon principle, he not having succeeded properly? This is the argument which presses upon my mind against
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the Little Gilmour case, and which I wish you to deal with.
Dr. Lushington.—That is the view of the case which presents the greatest difficulty, but I hope to satisfy your lordships that, according to the principles of entail law, where the heir is also heir of line, he is just as much heir of line as if the estate was not entailed. It may be true that according to the substance the heir of entail may simply take a life interest, but your lordships must look to what was the view taken by the law of Scotland as to succeeding to an entailed estate in ancient times; and it will be found, according to the view of that law, that he was considered absolute fiar, except to the extent of the restrictions imposed upon him. I can show your lordships, by authority, that an entailed estate is not to be considered as a succession of liferents, but a succession of absolute fees, except so far as there are particular burthens imposed by the effect of the entail; and if that be the real case, it will never do to resort to any rules of equity as to what ought to be the way in which matters of this kind were arranged. It must be considered with reference to legal principles existing at the time the rule was introduced; and I think I shall be able to show that the very rules which apply to an estate received ab intestato apply to an estate taken by entail. I apprehend it cannot be denied that where the same person happens to be heir of line to an entailed estate, as well as heir of tailzie, it is not correct to say that his character of heir of line is excluded by his character of heir of entail, and that the character of heir of line, to some purposes at least, remains unaffected, and not destroyed in consequence of his
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character of heir of entail. I do not accede to the argument, that it is not a matter of importance to consider what was the nature of the tenure of real property at the periods those authors which have been referred to wrote, and when the law of collation was introduced into Scotland. At what particular period the law of collation was introduced into Scotland, perhaps, it is impossible now to ascertain; but this is a proposition incapable of being denied, that from the very earliest times the law of collation has prevailed in Scotland. Lord Bankton lays down the proposition, that collation was permitted to the heir of line, that he might never be worse off than the next of kin; that, in consideration of his taking the real estate, he was distinctly deprived and excluded (to use the words of Lord Stair) from any share of the executry, but, as a matter of favour, he was permitted, being heir, to have a share of the executry, provided he collated the whole of the heritage he received on the death of his ancestor.
Mr. Erskine, (Book 3. tit. 9. s. 3.) in speaking on the subject, says, “Where the estate of the deceased consists partly in heritage and partly in moveables, the proper heir in heritage has no share of the moveable estate if there be others as near in degree to the deceased as himself. Thus in the line of descendants the eldest son gets the whole heritage, and all the other children, whether sons or daughters, divide the moveable estate among them in capita. Thus also in the collateral line, that brother who as heir at law is entitled to the whole heritage is excluded by his other brothers and sisters from any share in the moveable succession.”
My friends have contended that in point of fact the
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heir at law, according to the law of Scotland, had an original right precisely the same as the other next of kin, but that that original right was taken from him by reason of his being heir at law; and it then imposed on him the necessity of collating his heritage to enable him to come into succession. Our case is that the heir at law, by reason of the feudal system, whereby the whole of the heritage would descend to him on the death of his ancestor, never had any right, though next of kin, to the personal estate; but when the system of collation was introduced, it was done for the express purpose of conferring on the heir at law a benefit, viz., a title to share in the executry on condition of collation, he having ab origine no right whatever to share in the executry.
Mr. Erskine proceeds:
“But where the heritable estate of the deceased is so inconsiderable, in proportion to the moveable, that the heir finds it his interest to renounce his exclusive claim to the heritage, and betake himself to his right as one of the next of kin, the law allows him to collate or communicate the heritage with the other next of kin, who in their turn must collate the executry with him, so that the whole estate belonging to the deceased is thrown into one mass, and distributed by equal parts among all of them; and even though the heir be not one of the next of kin, if he be a grandson by the eldest son of the deceased, he seems entitled to the privilege of collating with the deceased’s immediate children, for since he succeeds to the heritage as representing his father, who was one of the next of kin to the deceased, he ought to enjoy all the privileges which would have been competent to his
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father as heir, had he survived the grandfather. Where the deceased leaves only one child, he is both heir and executor without collation; for where the right of the whole estate, heritable and moveable, descends to the same person, there is no room for collating the one with the other. This kind of collation is admitted, not only in the succession of descendants, but of collaterals; so that a brother who succeeds as heir to the deceased, if he judges the moveable succession to be the most profitable of the two, may collate with his younger brothers and sisters, and so come in as equal sharer with them in the whole succession.”
It is remarkable that to such an extent has the doctrine been carried to compel the heir at law to collate the whole estate, that it is applied to cases of foreign heritage; and in the year 1825, after argument, it was decided in the Court of Session, where an heir at law had an estate in the island of Jamaica, before he could be permitted to share in the executry, he must collate that foreign heritage. Mr. Erskine states finally as a reason:—
“For as collation was admitted into our law that the heir might in no event be in a worse condition than the other next of kin, that reason has equal force in the succession of collaterals, and of descendants. It is only the legal heir, or the heir ab intestato, who is thus obliged to collate the heritage with the other next of kin, in order to have the benefit of the moveable succession.”
Now, if collation took place according to the law of Scotland at a very early period of the Scottish history, I apprehend that at that time nearly the whole of the real estates must have been held by titles very different from those titles which exist at present. When collation
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first took place, the whole of the real estate to which the heir of line succeeded on the death of his predecessor descended to him in the nature of a strict entail; because, for a very long period of time antecedent to the passing of certain statutes, it was clear that upon the death of the predecessor the heir at law took nothing but a life estate property,—I mean in point of extent of power over the whole estate. He had no power of gratuitous alienation, and was incapable of exercising that power which statutes from time to time have conferred upon the vassals and owners of land in Scotland. Mr. Erskine says (Book 2, title 7, s. 5.), “By the genuine principles of the feudal system no vassal had a power to transfer the right of his feu to another without the superior’s consent; for, in rights merely gratuitous, the grant, together with all its conditions and limitations, must depend entirely on the grantor’s pleasure, and agreeably to those rules the superior was not bound to receive any person in the lands other than the heirs to whom he himself had limited the descent by the investiture, though the greatest sum should have been offered him in the name of entry. Hence Craig with reason affirms that no entail is effectual without the superior’s consent, because the fee is thereby made to devolve on a different order of heirs from that which was contained in the original grant; and where the lands are made over in the superior’s grant to the vassal and his assignees, the superior is obliged to receive the assignee only while the right continues personal, namely, before sasine be taken upon it, but not after perfecting it by infeftment; for the word assignee in a feudal grant ought to be applied only to personal
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“rights.” Now, supposing at that period a man had died, leaving four children, his heir at law would have taken the real estate, and that estate he must have brought into collation. But what would have been brought into collation? Nothing but a life estate merely. He had no power of disposing of that heritable property, and no power of bringing the whole fee as it were into collation; he could bring only that which he was entitled to, and that was a life interest (though it might be called a fee), as it is in the case of an entailed estate.
Lord Brougham.—How would a person be who took an estate from another without the resolutive clauses: would it operate merely as a simple destination? Notwithstanding the prohibition he could alienate the estate. Now, in that case would he have been obliged to collate his life estate or the corpus?
Dr. Lushington.—Mr. Clerk, who argued the case of Little Gilmour, and against the decision, puts that case and says, that perhaps in that case he might be called upon to collate. He seems to be pressed by that argument, and adverts to it; and your lordships presently will see, when I come to comment on what occurred in that case, the argument used by Mr. Clerk on that occasion.
Your lordships are aware that it is by a series of statutes the landed property of Scotland has become capable of alienation, first by a statute in favour of creditors, and next by other statutes which entirely set free (except in cases of entail) real property held by individuals in Scotland. This view is exceedingly important, because the law must be founded not on the state of things as they exist at this present moment, but
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as the law itself with respect to collation has subsisted for an extensive period, and long anterior to the passing of these statutes. We must consider that the law of collation prevailed at that period when the whole property in Scotland was held as of the nature of entailed estates, and it was considered as no possible impediment to the heir at law’s collating, though he had neither more ample nor more extensive rights than those which an heir of entail has at the present period. [He then proceeded to comment and argue on the authorities referred to by Sir John Campbell, contending that they all demonstrated that the heir of line, where he succeeds to an entailed estate, does not lose his character of heir of line even with respect to that estate itself.] He then went on thus: Balfour says, “No person, succeeding heir to his father’s or predecessor’s lands and heirship goods, ought and should have any part of any remaining moveable goods or gear which pertained to his father or predecessor at the time of his decease, except he would cast in and confer his whole heirship goods with the rest of the said whole moveable goods and gear altogether, that equal partage might be made thereof betwixt heirs and the rest of the bairns.”
Mackenzie uses these terms:—
“The heir has no share in the moveables except he collate, and be content that the rest of the children shall share equally with him in all that he can succeed to as heir, or in case there be but one child, for then that child is both heir and executor without collation.”
Now I grant that these are ambiguous terms, and it is said that this must mean heir at law, and nothing else. But if it had been the intention of Sir George Mackenzie to
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have expressed any exception to the general rule, the great probability is that he with his accuracy would have stated in more explicit terms that it was only that to which he succeeded as heir at law, and that it did not include what he might also take in the character of heir of entail. But your lordships will not find in any one of those authorities the slightest intimation whatever that it was the intention of any of those writers to make any difference whatever with respect to the heir of entail; on the contrary, the whole of them used the most comprehensive terms, which would include the heir of entail. Thus Lord Stair says, “Heirs are excluded from the bairn’s part, though in the family, because of their provision by the heritage.” “Exclude” is the word used by Lord Stair, except in two cases; first, “If the heir renounce the heritage in favour of the remanent bairns, for then the heir is not to be in a worse case than they, but they come in pari passu both in heritable and moveable rights, which is a kind of collatio bonorum.” Secondly, “It was found, if there be but one child in familiâ, and so both heir and executor, that child hath not only the heritage, but the whole bairn’s parts, and abates the relict’s parts and dead’s part, without collation of the heritage.” Now my learned friend commented on the term “heritage” as if it necessarily meant every thing which was directly inherited from the ancestor ab intestato, and did not include all the property which, in consequence of the death of an immediate predecessor, had been acquired of an heritable nature. But the case of which Lord Stair is speaking must be a case in which the immediate ancestor (respecting whose succession we
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are inquiring) was a person possessed of that kind of property which we are now contending the heir is bound to collate; and I submit the true meaning of the passage is, that every benefit derived in consequence of the death of that ancestor by a person being heir at law to him is intended to be collated, being of an heritable nature, to entitle the heir of line to that benefit which he had no right to at common law, and which he was only entitled to take on condition of performing the obligation imposed upon him.
Lord Bankton writes at very considerable length upon the subject, and he says, “Where the eldest son succeeds as heir he cannot claim any interest in the executry, either as a share of dead’s part or legitim, because in such case the succession divides.” How? One part of our inquiry throughout the whole of this case must be whether my Lord Meadowbank is justified in the use of the terms in which he expressed himself. Bankton says, “The succession divides,” (that is in substance what Lord Meadowbank had said before,) “and the heritage goes to the eldest son with the burthen of the heritable debts, and the executry to the younger children with the burden of the moveable. But as the eldest son is still one of the nearest in kin with his brothers and sisters, he may still claim in that character a share of the whole executry with them upon collation or contribution of the heritage, both what he succeeds to after his father’s death, and what he got disponed to him before, perceptione hæreditatis.” It is not unimportant, in tracing the law, to show that collation does not depend on succession ab intestato. On the contrary, the law contemplates that
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the whole of the property which was at any time held by the intestate should be collated, even that acquired during the life of his predecessor by disposition, marriage contract, or otherwise, thus showing that the obligation to collate was intended to extend as far and as comprehensively as possible.
Many of the cases which have been referred to appear to be entirely foreign to the present one. All the cases prove that the heir of line must collate, and your lordships will also find that there is not the slightest intimation of a contrary notion in any one of them.
Lord Brougham.—Is the heir of line bound to collate,
though he pays 10,000 l. for the estate?
Dr. Lushington.—No, my lord; there he does not take in the same mode.
Lord Brougham.—But there are many cases in which he may take as an heir tailzie with a consideration in money, or he may take in the form of a gift, or by a settlement, or under a marriage contract—the highest consideration known in the law. How are those two positions different? That is my difficulty. How would it be if he takes by purchase; if he pay 5,000 l. to be made heir entail?
Dr. Lushington.—To the extent perhaps he might be liable.
Lord Brougham.—That is, I suppose, you mean beyond the 5,000 l. But it is not enough to grind a little law as you go on; show me that it is so?
Dr. Lushington.—Your lordship is aware that this is a branch of the law that is very much in difficulty, even with the most learned persons.
Lord Brougham.—I feel that as much as you do.
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Dr. Lushington then commented on the case of Jack in 1763, contending that it established the distinction between the case of an heir alioqui successurus and heir portioner; that it was quite clear that if it had been the case of a son and two daughters it could not have been disputed that the son must have collated the estate. He then adverted to the cases of the Duke and Duchess of Buccleuch against the Earl of Tweeddale, and Murray against Murray, after which he proceeded thus:—
Then there is the case of Riccarts against Riccarts, from which very important information is to be colected. Indeed, as we descend downwards, all the cases become more important; they are reported at greater length, and we have a better insight to what was the intention at the time.
Lord Brougham.—I do not think so; not for a hundred years; I think for a century there are no useful reports at all; they give the decision of the judges, but they give only the arguments of counsel. I defy any human being, in a case of difficulty where you want to apply it, to know on what reason the judgment was given. You have an argument that might have been made by a steam engine, abridged perhaps from the pleading, and then that the lords found so and so.
Dr. Lushington proceeded to state the case of Riccarts, after which, and on alluding to the Little Gilmour case,—
Lord Brougham. said,—One thing has pressed on my mind through the whole of the argument, and in such a case I should like to have had the benefit of consulting the judges. But was not Little Gilmour a case of first impression, so to speak, for it is only the judgment of the Second Division? and just see what a disadvantage
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one is under when you consider that at that time the President of the First Division was so very eminent an individual in all branches of the law, but in none more than in real property—I mean the Lord President Blair. It would have been highly expedient to have had the whole matter laid before all the judges. My great difficulty very likely arises from my English law habits, and from not having looked into the Scotch law cases. You may remove them, but if they are not removed I shall not call on Sir John Campbell or Mr. Murray to reply. Not that I have made up my mind one way or the other; quite the contrary; but I should send the case back to their lordships. I do not mean to say any thing which in the slightest degree may be considered as drawing an invidious comparison between the two great branches of the Court, consisting of that which lies within the wall and that which lies without the wall; they are both eminent and learned branches; but it is impossible for me to shut my eyes to one consideration, that in the outer branch of that Court I find such men (and there are no such men, except in the Inner House, to be found anywhere in Scotland,) as Lord Mackenzie, Lord Corehouse, Lord Moncrieff, Lord Jeffrey, and Lord Fullerton. That is a prodigious temptation to my mind in settling so important a branch (and this will settle for ever this branch of the law) to take the highest and the best means to remove any doubts upon so venerable authority as that of Lord Meadowbank and his coadjutors, Lord President Hope and others, who decided that case.
Dr. Lushington.—My lords, I have the advantage of having near me a gentleman who is principally interested,
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and he authorizes me to say that to that course I should offer no objection.
Lord Brougham..—This appears, my lords, to be a case of very grave importance, and I think it will be expedient, that before remitting, which seems to be the most satisfactory course for all parties—before remitting the case to the consideration of the Court below, it appears highly expedient that, in order that the remit should be accompanied with all the good effects that can naturally be expected to grow therefrom, I take leave humbly and shortly to state to your lordships my view of the whole of this case. It will be more convenient that I should state that view at present, when we are at the close of the argument which we have in part fully heard for the appellants, and which is partially begun on the part of the respondent. But it will be more satisfactory to my mind, perhaps, if I do not give these learned persons the trouble to come again; but if the parties will come back at four o’clock I shall then be prepared to give my view of the case, and I will reduce into writing such view as presses on my mind, and which I think should be pressed on the Court below, valeat quantum.
Dr. Lushington.—I was going to draw your lordship’s attention very particularly to the case of Balfour and Scott, in order to show that the character of heir at law is not entirely sunk in that of heir in tail, to Lockart and Dunmore, Dictionary, 15,047; Mackenzie against Mackenzie, Diet. 15,053; the case of the Duke of Argyle and the Earl of Dunmore, Diet. 15,068; and the case of Stewart and M’Norton, on the 2d December 1824, in the second volume of Shaw and Dunlop.
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Lord Brougham.—My lords, the present question, confessedly one of great importance, and of which I regard the difficulty as not inconsiderable, arises out of that provision of the Scotch law which enables the heir, who, but for his inheriting the real estate of his ancestor, would have taken a share in the personal property as next of kin, to take that share as one of the children or other heirs in mobilibus at his election, but only upon paying the price by bringing in his inheritance as part of the whole fund or succession, and letting it be divided with the heirs in mobilibus. The law regards the succession in all cases as twofold—heritable, which goes to the heir, excluding the other next of kin—and moveable, which goes to the other next of kin, excluding the heir. But, as the heir is the person peculiarly favoured by the law, and as this preference might operate to his detriment rather than his advantage, were he confined in all cases to the real estate, an option or election is given him, by which he may be no worse off than the other next of kin, though he shall not be better off than they, if he elects to interfere with their fund, and so must let them share his land if he is to share their gear. Nothing can, therefore, be more just or fair than this fundamental principle upon which the doctrine of collation rests, always assuming that the heir is to have the preference as regards real estate, which excludes the other next of kin from any election as against him, while it gives him his option as against them. The equitable view of the subject, which gave rise to this doctrine, has been carried so far as to require an heir claiming his share of personalty to collate even real estate to which he succeeds in another country. This point was first considered in 1817, in the case of Robertson v. Macreen *,
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where the Court, after two opposite judgments by two Lords Ordinary (Balgray and Alloway), held it clear that a party claiming legitim in Scotland must collate the Jamaica estate to which he had succeeded from the same intestate that left the moveables. This seems to be a considerable stretch of the principle, and it was admitted to be then first decided. Would it not follow from the rule thus recognized, that if a youngest child in Scotland succeeded to lands of the tenure of borough English in Middlesex, he must bring those lands into the common fund before he could take his legitim or legal provision; for though quoad personalty he is a younger child, yet in England, where the land lies, he is quasi eldest—he is heir—for heir is nomen juris, and does not designate one child more than another. Does not this show the difficulty of holding that land situated in a foreign country, and dealt with and descending according to a foreign law, is to be regarded as if it were under the control of the Scotch law? Notwithstanding this rigour, however, in applying the principle, and making the heir pay the price, it never was contended that equality is to be worked out between him and the next of kin at all hazards, and that whatever the heir has, and however it may have come to him, he must bring it into the common stock. The real estate coming to him from the father or other ancestor, whose personal property is in question, is all that he can be required to collate; and I presume, upon a principle of presumed intention, that the father, who might have otherwise disposed of his personal estate, died intestate, and left the law to dispose of his substance,
_________________ Footnote _________________
* 18th Feb. 1817. F. C.
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believing the heir would take the land and the rest the gear; but that, had he supposed the heir would claim upon the gear, he would have made another arrangement of his property. This, too, accounts for the collation being confined to intestate succession, and for the rule admitted to be settled, that if the heir takes nothing by inheritance, he needs not collate what comes to him from a remoter ancestor, even, it is said, where the immediate ancestor who left the personalty behind him was life-renter of the land, so that his death opened the succession to the heir. This principle it is that raises my first difficulty as to the provision, supposed by the judgment to exist in the law, as regulating the present question; for if the heir, taking nothing in land from the last ancestor, owner of the personalty, needs not collate, merely because he takes nothing in land from that ancestor, why should he collate in a case where confessedly he takes just as little, namely, where he succeeds, but succeeds, not as heir of line, but as heir of tailzie, has no privity with the last heir of tailzie, could in no way be either helped or hurt by any thing that his predecessor could do, and takes, as regards him, by a title altogether as singular as if he had received the estate from a stranger; in which case, it must be admitted, no question at all could have arisen upon collation whether the estate was entailed or not. It may indeed be said that the ancestor’s presumed will as to the personalty is here the ground of requiring collation to be made by the heir of tailzie. But why is there more presumed intention in this case than in the last one put, namely, that of a tailzied estate coming to the heir through the last ancestor, owner of the personalty, and coming by the fact of his decease? Surely he may
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be supposed to have had this advancement in fortune also in his eye, and it may be said, that had he thought the heir would claim on the gear, he would have willed it away to the younger branches, because he knew full well that the same event which left the goods and chattels to them left the land to the eldest branch; and indeed the same argument would apply to the case of real estate coming from a mere stranger, but which the immediate ancestor, owner of the gear, knew would so descend upon and provide for his heir. The next difficulty which I have felt pressed by is akin to the former. The law has undoubtedly laid down that estate coming to one, though by conveyance, must be collated, provided it be such as but for the conveyance would at all events have come to the heir,—estate to which he was alioquin successurus. Now, granting that this is settled in the case of one taking the fee by destination to which he would have succeeded at any rate by descent, and granting even the more general proposition, that whatever interest, whether fee-simple or fee-tail, or any other more restricted interest, a person takes by singular title, he must collate, provided he would have taken it by inheritance in the event of no such destination having ever been made in his favour; still I do not see that this proposition (and it is a pretty large one) can cover the case of a person taking under a tailzie, as heir of tailzie, the estate which, but for there having been a tailzie, he would have taken as heir of line. We seem here to be confounding two very different things. We suppose the capacity of the heir of tailzie to be lost and merged in that of heir of line, because the same individual is clothed with both characters; and we also suppose that, because the estate which
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is tailzied is also the estate which, but for the entail, would have descended upon the heir of tailzie as heir of line, therefore the same tailzied estate is in the same person in both his different capacities; in other words, that he takes in one way only what he would have taken in another, had there been no entail to interfere with the succession. If, indeed, this were true, no doubt the principle of collation would apply, and all the grounds that can be assigned for it would exist here; but it is neither true nor any thing like the truth. The heir of tailzie as such may be the same person with the heir of line, but, as regards the estate tailzied, he stands in a perfectly different position, and the estate tailzied and which he enjoys under the entail is not at all that which he would have taken by succession. By succession he would have taken the fee-simple, with all its incidents of absolute liberty of enjoyment, of dealing with it during his life, and leaving it after his death. By the tailzie he only takes the estate tied up in every way both as to enjoyment and as to succession; he takes the fee from one who might have given it as he chose; he takes the entailed estate from one who was himself tied up, supposing him to be only heir of entail; he takes the fee from the immediate ancestor; he takes the tailzied estate from some one else. Admitting that he must collate whatever he takes, to which he was alioquin successurus—here he was not alioquin successurus to the same thing which he took under the entail, but to another and a very different thing; he takes a tailzied fee by the entail, and he would have taken a fee-simple by succession. Is he bound to collate exactly what he would have taken by descent?—then let him collate the fee which he would have taken had there been no entail;
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but the fee he cannot collate, for he has it not. Does not this show the difficulty of applying the rule of alioquin successurus to this case? But a subtle kind of argument appears to be raised in order to meet this difficulty. It is said that the heir of tailzie takes a portion of the fee which he would at any rate have succeeded to, and that such portion being common to both his capacity of heir of tailzie and heir of line, he must collate to that extent as alioquin successurus. Thus it is considered that he was alioquin successurus to a thing composed of two parts, the life-rent and the fee; that by the tailzie he takes one of those two parts, the life-rent, and that therefore he must, as alioquin successurus, collate to this extent. Now, though I will not deny the force of this observation, I must observe its repugnancy to the doctrine of a Scotch entail, resembling, as the observation does, and very closely, our English doctrine of remainders and particular estates. For a Scotch entail is a succession of fees to be successively enjoyed; not a carving out of one estate or interest into a number of portions to be vested immediately, but to be successively enjoyed; and therefore, consistently with this Scotch law doctrine, you can hardly hold that the heir was alioquin successurus, unless the kind of fee which he took under the tailzie was exactly the same with that which he would have taken by inheritance. Perhaps, indeed, the best support of the present decision, and of the case of Little Gilmour, is to be found in the principle of the heir of tailzie taking a fee only restricted in so far as he is tied up. But again he takes not a fee-simple to which he is alioquin successurus, but a fee-tail to which he never could have succeeded by inheritance. Let us now consider strictly the case of an
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heir of tailzie under a simple destination—one holding by a tailzie without the fencing clauses. He takes no fee, that is, no fee-simple, nor any thing like it, but a feodum talliatum,—as both the old law of England and of Scotland term it,—a fee-tail. He is not validly prohibited, it is true, from converting it into a fee-simple: as in England he may do so by fine and recovery, and the conveyances substituted of late for that proceeding, so in Scotland by conveyance he may convert his right into a fee, or in Scotland he may, without any such process, validly deal with it as a fee in most particulars; but until he does so, until he suffers a recovery here, or otherwise affects it in Scotland,—that is so long as he does nothing but enjoy it,—he has only a fee-tail. Now shall he be called upon to collate the whole corpus of this estate, or only the portion which he takes by force of the entail, that is, the fee-tail? So, were collation the English law, would the tenant in tail with us be obliged to suffer a recovery for the purpose of vesting the fee in the common fund, and dividing it with the personalty? This is one difficulty; but another is akin to it. Suppose him to have done something to affect the remainder over in England, or in Scotland to burden the estate, and evict or otherwise injure the succeeding heirs of tailzie, I ask what is he to collate—the estate tail as he has made it, or the estate tail as he received it from his ancestor, or through his ancestor, owner of the fund? This is a question of some nicety, and I do not see how it is to be dealt with upon the principles which have governed this decision; for surely it would be going a great way to hold that he must collate, not only what he got under the entail, but what he made of that since he came to it, and which no
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power on earth could have compelled him to make of it, namely, a fee-simple. Again, what shall be said of one who takes an estate by purchase for a valuable consideration? Suppose the heir buys the estate to which he was alioquin successurus, it is agreed on all hands that he is not to collate that; and yet how can an heir of tailzie, in contemplation of law, be said to be other than a purchaser? But the value given is said to make the difference; value, however, in law, is not merely money or land exchanged. Marriage is just as binding a consideration, and one just as valid to exclude claims of subsequent onerous creditors, as money price or excambion. Then, suppose the heirs of tailzie and provision to take under a marriage contract estates to which they were alioquin successuri, why are they to collate more than the heir who gave value in money? They may not have given the consideration themselves, but their parents or other ancestors who contracted the marriage upon the faith of the settlement gave value,—they executed the highest and most binding consideration known to the law. Nay, we may put the case of a settlement by which the father on his son’s marriage makes him heir of tailzie and provision, failing himself—the common case—then the son must collate this, though he had given just as high, if not a higher, consideration than if he had paid a sum of money, in respect of which his father had executed an entail, making him institute. I have stated these difficulties without pretending to say that they weigh against the decision under review, so as to make me think it erroneous; but they make me anxiously desire farther light upon its principles than I can find in the reasons of the learned judges by whom it was pronounced. Their lordships rely entirely upon the
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Little Gilmour case in 1809, which is entitled to very great deference, no doubt, both as having been most ably supported in argument and as having now stood for above a quarter of a century unimpeached by decision, though how far approved and how far acted on in practice we are not informed. The able argument of Lord Meadowbank in that case, full on many points, does not give me the light I desiderate upon the points to which I have adverted, and which I deem the main difficulties that encumber the question. Nor can I close my eyes to the manner in which a very high authority, Mr. Erskine 1, treats the subject, and which, though he gives no very explicit opinion upon the general question, and refers chiefly to the case of heirs portioners, and the decision in Ricarts v. Ricarts, yet so expresses himself as to leave no manner of doubt in my mind that the rule in the Little Gilmour case would have been to him a great surprise. Lord Meadowbank, in his able and ingenious commentary on the case of Ricarts v. Ricarts, does in no way meet the authority of Mr. Erskine, nor his reason for that decision, namely, that the heirs portioners succeeding to the heritage by the father’s entail or destination takes from one having full power over that heritage as well as over the moveables,—a reason just as applicable to a son upon whom the father entails lands to which he was alioqui successurus. It is certain that the learned judges have stated the Little Gilmour case to give only the same law with former decisions. I have examined these older cases without being able to satisfy myself clearly and fully that it is so. The case of Murray v. Murray, in 1678 2, comes the nearest to it without touching it, while the case of
_________________ Footnote _________________
1 8 Ersk. 9, 3.
2 23rd July 1678; Mor. 2374.
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Rae Crawford v. Stuart 1 is far from going to that extent in my apprehension. As for the Scotstarvit case 2, or Balfour v. Hay, it goes much further if we take it to the full extent, and further than I can conceive any one would think of holding to be law; for it sanctions the position that there is collation wherever the heir takes, whether alioqui successurus or not. On the points themselves, however, and on the question whether or not the case of Little Gilmour was one of the first impression, I have no occasion now to decide. I only was desirous that in sending back this important and difficult question to the Court below for the benefit of a further consideration than it has as yet received, either now or in 1809, and by all the learned judges, the light in which its merits have appeared to me should be accurately known. 3
It is declared by the House of Lords, That the House (by consent of parties) forbears hoc statu to pronounce any decision upon the matter of the said appeal; but it is ordered and adjudged, That the said cause be remitted back to the said Second Division of the Court of Session, with an instruction to the Judges of that Division to order the matter of law in question in this cause to be heard before the whole judges, including the Lord Ordinary, and to pronounce judgment according to the opinions of the majority of such whole judges.
Solicitors: Spottiswoode and Robertson— Richardson and Connel,—Solicitors.
Source: https://www.bailii.org/
