Duke and Duchess of Monmouth v. the Earl of Tweedale
Date: 14 February 1677 Case No. No 15.
A decreet arbitral being challenged by reduction, as to the enorm lesion of a minor, party in the submission; it was not sustained as homologation, that the pursuers procurators, in an action, upon the decree arbitral against third parties, had made some judicial steps, unless there had been a special mandate for the compearance.
Interlocutor.
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In a reduction, raised at the instance of the Duke and Duchess of Monmouth, of a decreet arbitral pronounced by his Majesty, in anno 1667; whereby his Majesty taking burden for the Duke and Duchess, did decern that they should discharge the Earl of Tweedale of their relief and re-payment of the sum of L. 44,000 Scots, paid by Francis. Earl of Buccleugh, as cautioner for the said Earl, and for his relief and payment had got a wadset from the Earl of Tweedale of his lands of Meggetland, wherein the Countess of Buccleugh was infeft as heir to her father, and this Duchess as heir to the Countess her sister; and, by which decreet, both parties were ordained, and accordingly did discharge others, of all clags and claims which either of them could lay to others charges. Upon this reason, that the Duke and Duchess were then minors when they did submit, and granted a, discharge of their interest, and being, enormly hurt and leafed thereby, and by the decreet arbitral it was null in law and ought to be reduced, and they ought to be reponed against the same, and put in the same condition they were in before the submission. The Lords having appointed that the pursuers procurators should condescend upon the particular points of the lesion; they did allege, That before they were obliged to insist upon a particular condescendence, they ought first to have the Lords interlocutor upon this point, that the Duke and Duchess having a clear and absolute right for their relief of cautionry, and that by transaction and submission the same being funditus taken away, and nothing given in place thereof, but a right to the lands of Hassen dean, whereof the Earl of Tweedale was not in possession, but the same was only debateable in law, and controverted by many persons who had a right to these lands, and were still in possession thereof; as likewise, that the Earl of Tweedale's claim was only for pretences due to his Lady for a part of her father's executry, and of her brother David's and Lady Mary's her sister, which could not be done in law, and was never so decerned, but were naked pretences; and therefore, they craved, that upon that general ground, the Lords would regone them against the submission and decreet. It was answered for the Earl of Tweedale, That he having just reason, and being well founded in law, to give in his claim as creditor upon the foresaid ground, which were all transmitted to Scotland and advised by the Duke and Duchess' lawyers; as likewise, by their lawyers in England; and, after report made by them, the King having given his decreet arbitral, the same ought not to be funditus taken away until all the particulars transacted were fully considered, and an enorm lesion found qualified and proven. The Lords having considered this debate, did refuse to give sentence upon the general ground; and did ordain the advocates for both parties, to insist upon the particular condescendence, that it being laid in the balance what was truly given and discharged by the Earl of Tweedale, in contemplation of that discharge of reversion granted by the Duke and Duchess, it might then more clearly appear, what would be the enorm hurt and lesion.
It was then alleged for the Earl of Tweedale absolvitor from the reduction, because the pursuers, after majority, had homologated the decreet arbitral by two deeds, viz. one, in requiring the money decerned, to be paid; and another, by making use of the disposition of the lands of Hassendean, made by the Earl to them, in a judicial process for recovering the rights of that estate. It was replied, that no respect ought to be had to the first, because they never received any payment nor offer thereof, and a naked requisition being only to try the Earl's mind, if he would obey the decreet, cannot be obtruded as a ratification. It was replied to the second, That the making use of the sights of Hassendean in a process, depending at the instance of third parties, being only a deed of advocates, and never any benefit recovered thereby, it can be no homologation. The Lords did repell these defences, and found, that a naked requisition not taking effect, and a compearance made by procurators, without a special command of the parties themselves, for whom they compeared, could be no homologation, the compearance being contra tertium. It was farther alleged, That the decreet arbitral could not be reduced, because there was a decreet in foro obtained before the Lords of Session, decerning the greatest part of Tweedale's whole claim to be just and due in law. It was replied, That the decreet was pronounced against the pursuers when they were minors, and cannot be called a decreet in foro, their procurators never having made any debate; but, on the contrary, the saids processes were only contended of consent, and by order of the arbiters, to fortify the decreet arbitral. This allegeance was likewise repelled; and it was found, that such a decreet could not hinder minors to reduce any deed of theirs, upon enorm hurt and lesion, or to propone all that might have been alleged in law, in secunda instantia. It was farther alleged, That this decreet arbitral being pronounced by the King's Majesty, as taking burden for the Duke and Duchess, it could not be quarrelled by them, seeing the King was undoubtedly liable, albeit the minors should prevail in their reduction. It was answered, That the allegeance ought to be repelled, because the King having given his decreet upon wrong information, et suppressa veritate, as no grants are valid, which are so made by the King, neither ought this decreet; and what-soever might be decided in that case, cannot hinder the minors themselves. The Lords did repell the defence, wherein all agreed as to the minors interests; but, as to the King's taking burden, it was the opinion of several with myself, that it should be continued to be decided until first the whole condescendence of hurt and lesion might be cleared.
It was thereafter alleged, That there was just ground for the decreet arbitral to make the Duke and Duchess discharge the Earl of Tweedale of a just debt, in consideration that the Lady Tweedale, as executrix to her brother David, had right to his full part of the father's inventar of the testament, which extended to a great sum, there being only a tripartite division. It was answered, That David being provided by his father to a considerable estate of land in his own time; and, making no mention of him in his testament, it ought to be presumed in law, that it was in satisfaction of all bairns part of gear, or portion natural; and at most, he ought to have made offer to collate with the rest of the bairns, whatsomever estate he got from his father, that they might all come in pari passu, both as to his right and what fell to them all by disposition or bairns's part. It was replied, That any lands disponed to David, not being in satisfaction of all portion natural, cannot take away his right of succession with the rest, and as one of the children, neither needed he to offer to collate, which is only where the dispositions are so affected, and granted in satisfaction of all portion natural. The Lords did find, That any lands disponed to David, being to him as a second son, and not of any great value, considering his father's great estate, and not being burdened with any condition, that it could not be in satisfaction of his legitim and just part of the executry, whereof he could not be prejudged; and, that the same did belong in law to the Countess of Tweedale, as executrix to the said David. It was farther alleged, That the Countess of Tweedale, as executrix to David, had right to a fourth part of Lady Mary's legitim, Which was a fourth of the whole, there being one brother and three sisters; and, albeit David was never confirmed executor to Lady Mary, yet his interest, as nearest of kin, is founded in law and transmissible as a relict's third and legacies, and is so statute by the act of Parliament 1617; as likewise, by an act of Parliament King James the Fifth, and was so decided in the case of Bell and Wilkie*; and, seeing the Countess of Tweedale may yet be confirmed executrix, decreet ought to be given upon her confirmation. It was answered, That the pretence had no foundation in law, 1mo, Because David was never confirmed executor to Lady Mary, and so dying without confirmation, the Countess of Tweedale, as executrix to David, can have no right, because it was hereditas non addita; which, by our law is not transmissible, and puts no difference betwixt heritable and moveable rights. And as to the said acts of Parliament, they gave only right to the nearest of kin to pursue the executors, nominate and dative, after their confirmations; but, if any of the nearest of kin never pursue, nor obtain decreet by dying intestate, none representing them can have right, they having none in their own person without confirmation, or obtaining a sentence;
* 12th February 1662; Stair, v. 1. p. 96. See Nearest in Kin.
and, as to the case of Bell and Wilkie it was only found, that one of the bairns being confirmed, and so was in the case hereditas addita, and she dying, her nearest of kin, had right to her whole part; and the only question was, there being an omission and her whole part not fully given up, their nearest of kin, by a dative, would have right; and so it was found by the Lords, that the universal title being settled by a confirmation, the same was transmissible to the nearest of kin, who might conform themselves ad omissa which had fallen out by ignorance, and so have a title to pursue the executor nominate, who was in mala fide not to give up the whole inventar, and yet this was a new decision; and, before that, the case of hereditas non addita was never so far extended, 2do, Albeit the Countess of Tweedale were confirmed executrix to Lady Mary, she could have no right either to David's part or her's; because, by a contract of marriage, she had fully renounced and discharged whatsoever could fall to her by the death of her father, and so had no right to any thing which belonged to David, or Lady Mary, as bairns part of gear through their father's decease. The Lords did assolizie the Duke and Duchess from that part of the claim; into, Because David was never confirmed executor to Lady Mary, and so could not have a right to a fourth part of what belonged to her, as one of the bairns, which was not otherwise transmissible, and so that part was adbuc ob non additam hereditatem. 2do, They found, that albeit the Countess were confirmed executrix to Lady Mary, yet she could not crave any thing that fell to her through her father's decease, in respect she had given a full and absolute discharge in her contract of marriage, in contemplation of the tocher provided to her with the Earl of Tweedale. It was likewise thereafter insisted on, upon this point, That when the decreet arbitral was given, it was upon great misinformation, as if the whole inventar of Walter Earl of Buccleugh's testament did fall equally to the children besides the heir; whereas, the defunct's part which was the half, was legate and bestowed upon his eldest son Earl Francis, by the latter will and testament, in so far as not only he had nominate him his sole executor, but likewise universal intromitter with his whole goods, and gear, and debts, which he ordained the tutors testamentars to apply for relief of his burden and debts, that did affect his estate, which must be presumed to be the whole rents and stock of plenished rooms which were then in his possession, and not to any rents and goods that would fall to his heir after his death. It was answered, That the testament was opponed wherein Earl Francis was left executor and universal intromitter, which did belong to the office of executry, albeit it had not been exprest, and was only insert ex stylo. But, by our law, it was never extended nor gave right to an universal legacy, unless the testament bear expressly, that such a person is nominate executor and universal legator; and as to the disposal of the whole goods and plenishing, it being only an advice and direction subjoined to the nomination of tutors testamentars, it can only relate to the management of the pupils estate during their factory, but can never be extended to a legacy in favour of the executors. The Lords did differ amongst themselves as to this point; but at last, by a plurality of votes, it was carried, that it was an universal legacy in favours of the eldest son and heir, as executor. To which they were moved upon these grounds, that of old, by the style of testaments, universal intromitters and legators were pares termini in jure et homonyma, as likewise, that the defunt had provided all the rest of his children to reasonable portions, so that having great debt upon his estate, he could not in reason, but dispone of that which was his own to relieve the great distresses it lay under; but some others, whereof I myself was one, was of another opinion, that there being no express universal legacy, which was so great an interest of the whole moveable estate of the Earl of Buccleugh, and his testament being drawn by Mr Francis Hay, one of the ablest writers of his time, and advised by the ablest lawyers, there is no doubt if it had been so intended, they would have expressed universal legator, which was as easy as universal intromitter, knowing that long before that time, that interpretation of universal intromitter was obsolete, and out of doors by practice and custom. 2do, The provisions made to David were not very considerable, he being the only younger son, and the portions given to the daughters were at most but reasonable, and not exceeding what was given to other ladies who were not near of so rich families, and by none of them any were secluded from their portion natural, nor were they given in contentation.
