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In a competition betwixt an heir and an executor, anent the right of a mill, whereby the tacksman's entry was at Whitsunday, where the first terms of payment of the rent was at Candlemas, and the second at Whitsunday, the life-renter having survived Candlemas, and died before Whitsunday, the question arose, how far the executor of the liferenter had right, it being alleged, that the executor of the liferenter could only have right to the one-half, the life-renter having only survived the first term as in house mails.
The Lords found, that the legal terms of a mill rent being Whitsunday and Martinmas, the life-renter having survived both the legal terms, had right to the whole year's rent in the same way as in land rents, and not to the one term as in house mails.
Stair, v. 1. p. 762.*** Gosfbrd reports this ease:
Captain Guthrie having married the Laird of Mackerston's relict, who was liferentrix of the mill of Mackerston, they did grant a tack of the mill to Murdoch, for payment of a yearly duty, at two terms in the year, viz. Candlemas and Whitsunday thereafter, the entry of which tack being at Whitsunday 1667, and the Lady surviving Candlemas thereafter, the said Captain did pursue the Miller for a whole year's duty. It was alleged for him and Mackerston, who was heritor, that the pursuer could have no right but to the half-year's duty, seeing the liferenter died before the second term of payment, and so that term did belong to the fiar. It was answered, That as in tacks of lands the legal terms are Whitsunday and Martinmas, and if the life-renter survive Martinmas, the whole year's duty is due to her and her executors, notwithstanding of any conventional terms; so in the tacks of mills, the liferenter's right ought to be regulated according to the legal terms, seeing mill duties are payable for that same year's crop that the victual is ground at the said mill. It was replied, That there was a great disparity betwixt tacks of lands and mills, the benefit whereof is not for any crop of corns, but are quotidianæ obventiones ob operas & servitia, and so ought to be regulated according to the terms of the tack; and the entry to mills not being the same as to lands, but sometimes at Whitsunday, and sometimes at Martinmas, they cannot be regulated by the legal terms of land rent.
This was continued to be decided until the 4th December thereafter, as you will there find. See p. 15892.
