(1766) 2 Paton 122
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Succession — Adjudications — Destination — Heirs Whatsoever — Confusio.—
Adjudications were purchased up by the heir succeeding to an estate specially destined to “ heirs male.” He took the conveyances of these adjudications to himself and his “heirs whatsoever.” Held, that when the estate descended to an heir male, different from the heir of line, or heir whatsoever, that the heirs of line were not entitled to succeed as such, to the adjudications; and that these, as collateral and accessory rights, had accrued to the family estate, and were not now a separated estate, but extinguished confusione in the person of the heir male.
In the year 1700 Sir Thomas Burnet settled his estate of Lees by a tailzie, upon Alexander, his eldest son, and the “heirs male of his body, whom failing, to his other heirs male,” reserving a power to himself to alter the tailzie, and to charge the estate at pleasure.
His eldest son being married to Miss Helen Burnet, only
Feb. 5, 1714.
On Sir Thomas Burnett's death, Alexander, his eldest son, now Sir Alexander, succeeded; and an agreement, or postnuptial contract, was entered into with his mother, and wife and self, having in view to diminish the burdens on the estate, in so far as the provisions affecting these were concerned; he became bound “to provide and settle his whole lands, pertaining to him at the time of his lady's death, upon himself for life, and their eldest son, and the heir's male of his body, whom failing, to the other heirs male procreate of the marriage; whom failing, to his other heirs male whatsoever in fee.”
At this time the exact state of his father's affairs (Sir Thomas) were unknown; but these, being afterwards made known, turned out to bo bankrupt. Sir Alexander was advised to repudiate, and enter heir cum beneficio inventarii.
Having thus been deprived of the estate entailed on him by his father, he took measures to secure himself in payment of the £40,000 Scots, provided to be paid to him in his marriage contract, on the event that had now happened, namely, of being deprived of the estate by the debts and incumbrances of his father. He assigned this obligation to a trustee, who brought an action upon it, obtained decree, and led adjudication against the estate upon this and other debts, which he had bought up. This adjudication, together with other two, were afterwards conveyed, together with the lands adjudged, to Sir Alexander Burnett, “his heirs and assignees whatsoever.”
In an action brought in 1721, it had been decided by the Court that Sir Alexander Burnett, the son of the entailer, was not bound by the entail, as it might, in consequence of the reserved powers, be altered and cancelled at
Sir Alexander continued to possess the estate till his death in Dec. 1758, gradually paying off, by good management, the debts on the estate and never altering the securities, or conveyances of the debts and adjudications, which were taken to his heirs of line, not to heirs male. On his death, he left an only son, Robert, and two daughters. The son, Sir Robert, in order to connect himself with the whole legal title then in his father, namely, that by cum beneficio inventarii, as well as that by purchase, under the adjudications, served himself in the two characters of heir male and heir of line, and was infeft. He died, of this date, without issue, being succeeded by his cousin, the respondent, as heir male.
The present question was then raised by the appellant, the son of Helen Burnett, Sir Alexander Burnett's eldest daughter, as one of the heirs portioners and heirs of line of Sir Alexander, in so far as the debts secured by adjudications, which bore to be in favour of his heirs whatsoever, were concerned. He therefore raised action concluding for payment of one half of the debts secured by the adjudications, contending that as these bore expressly to be conveyed “to Sir Alexander Burnett, and his heirs whatsoever,” one half descended to him, as his heir whatsoever and of line, as a distinct and separate estate from the land estate, over which they were burdened. In defence, it was pleaded, 1 st, That the words “heirs whatsoever,” in the conveyance of the adjudications, must be understood to denote the heirs male succeeding in the estate; and that the adjudications were extinguished confusione in the person of Sir Alexander and his son, who made up titles as heirs male, and thereby became debtors and creditors in the several debts; 2 d, That Sir Alexander, by taking the conveyances of the adjudications to himself and his heirs whatsoever, did not intend thereby to create a separate estate, descendible to his heirs of line, for this practically would be, to perpetuate the incumbrances on the estate; but, as collateral rights, these adjudications accrued to the family estate, and were extinguished confusione in the person of the heir succeeding, or acquiring the same.
July 7, 1763.
The Lord Ordinary, of this date, pronounced this interlocutor:
“Found that the three adjudications, with the
grounds of debt libelled on, conveyed to the deceased Sir Alexander Burnett, his heirs and assignees whatsoever, are not now a separate estate belonging to the pursuer, and Robert Aberdeen, as heirs of line to the said Sir Alexander, but that the same are now descended, and properly vested in the defender, as heir male and of investiture of the said lands contained in said adjudications.”
On representation and reclaiming petition, the Court “unanimously sustained the defences and adhered.” An appeal was taken to the House of Lords against these interlocutors.
Pleaded for the Appellant.—In the law of Scotland the words “heirs whatsoever,” have a clear determined signification; they denote the heirs of line, or heirs at law, in contradistinction to heirs male, and carry every subject of succession falling under that title, as distinct from the succession taken up as heir male. This is further strengthened by the evidence of intention, from the terms in which these rights are conceived, and also in the origin of the £40,000 Scots bond, which was given to the lady, and was secured for the behoof of the issue of the marriage, whereas, if it had been intended to go to the heir male, it would have been so expressed, in accordance with the settlement of the estates then made. Therefore Sir Alexander, in settling it on heirs whatsoever, intended to secure the £40,000 Scots on the issue of the marriage, in preference to his collateral heirs male, who could have no title in law or equity to Lady Burnett's own estate; to the exclusion of her own issue.
Pleaded for the Respondent.—That the words “heirs whatsoever,” had no fixed or determined meaning, and were descriptive of all kinds of heirs, and applicable, according to circumstances, and the apparent intention of parties, to heirs of line, heirs male, heirs of conquest, of tailzie, or of provision; and where the settlements of an estate are devised to heirs of any particular character, the acquisition of collateral rights, or incumbrances affecting that estate, though conceived in favour of heirs whatsoever, are carried as accessory, and must belong to the heir of the estate. If Sir Alexander intended to preserve the debts as a separate estate, descendible to his heirs of line, distinct from heirs male, he would have left some deed as evidence of this his intention; but the adjudications conceived in terms to him and his heirs whatsoever, are no evidence of such intention, but leave these debts to go as accessories of the estate to the heir male.
After hearing counsel, it was
Ordered and adjudged that the appeal be dismissed, and that the interlocutors complained of be affirmed; and it is farther ordered that the appellant do pay to the respondent £80 costs, in respect of said appeal.
Counsel: For Appellant,
For Respondent, C. Yorke, Al. Wedderburn.
Note—This case is not reported, but a subsequent case between the same parties appears reported. Vide M. 14939; Fac. Coll. iv. p. 221; by mistake, it is stated that this last case was appealed; but the judgment in the House of Lords there affixed, does not apply to that case, (which was not appealed,) but to the present case, now for the first time reported.