Bonds secluding executors descend not to heirs of conquest, but to heirs of line.
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Mr Alexander Wedderburn having granted a bond of 1000 merks to the deceased John Begbie, and his heirs (secluding executors) there falls in a competition betwixt the creditors of the immediate elder brother, who claims the sum as heir of conquest, and the younger brother, who alleges the same falls to him as heir of line; and for whom it was alleged, That the heir of conquest has only right to lands and tenements; the privilege of the heir of conquest being derived from the feudal law, which is clearly expressed in the book of Quoniam Attachiamenta, or Baron Laws, cap. 88. and cap. 97.; and therefore heirs of line have right to heirship moveables, and to tacks and pensions, though these be conquest.
It was answered; That whatever be indulged to heirs of line as to moveables, which are perishable goods, or to tacks and pensions, which are hardly to be reckoned heritage, that is not to be extended to heritable bonds; and there is no difference betwixt a bond secluding executors and a bond containing a clause for infefting the creditor: And the citations adduced do not clear the point; for nothing is there expressed concerning such heritable obligations, but only that lands ascend.
“The Lords preferred the heir of line.”
Fol. Dic. v. 1. p. 375. Dalrymple, No 73. p. 94.*** Fountainhall reports the same case:
John Begbie having lent 1000 merks to Mr Alexander Wedderburn, advocate, takes the bond payable to himself, his heirs and assignees, but secluding his executors. He dying, Patrick, his immediate elder brother, serves himself heir of conquest to him, and claims the sum as acquired by his second brother's industry. William, the immediate younger brother, serves as heir of line, and he claims it eo nomine, as falling to him by the usual course of succession. Mr Wedderburn, the debtor, suspends on double distress. Alleged for Patrick, the heir of conquest, That this sum was undoubtedly made up by his younger brother's frugality, and so was conquest; and the rule of law was plain, making conquest ascend, and heritage descend; and that this was heritable, was as clear, seeing, by the act of Parliament in 1641, renewed in 1661, cap. 32 not only bonds bearing obligement to infeft, but likewise bonds secluding executors, are declared heritable to all effects and purposes, and so must belong to him as the undoubted heir of conquest. Answered for William Begbie, the heir of line, That he did not controvert that conquest ascended, but that was only to be understood of lands and tenements, and feudal rights acquired by the defunct, but not of sums of money conceived heritably, unless that infeftment has either actually passed, or may pass thereon; for that bonds secluding executors are reputed heritable, that is only fictione et interpretatione juris, but not in the propriety of speech; and that our old law understood no other conquest but lands and feus, appears by the 88th and 97th chapters of Quon. attach. et statut. Robert III. c. 3. where this individual case of three brothers is stated, where the middle brother having died, leaving lands and tenements, it is decided that they fall to the elder as heir of conquest; from whence it appears, that nothing was then reputed conquest except it affected lands; which this bond secluding executors does not; and it can no more be reputed conquest than moveable heirship, tacks of lands, and pensions for years yet to run, and yet all these three fall to the heirs of line; as Craig, lib. 2. dieg. 15. observes, and was decided Ferguson, No 2. p. 5605., in the case of a tack. Replied, That, before the act 1641, both our lawyers and practice did fluctuate and vary, as to what bonds were moveable, and what heritable; for, by the canon law, annualrents being reprobated, to elude that prohibition, infeftments of annualrent were invented, which was the cause why our old laws speak only of rights of lands as conquest; but bonds bearing annualrent being allowed since the abolishing of Popery by the Reformation, that distinction now ceases, and a bond excluding executors, is, in construction of law, made as much heritable as a bond bearing infeftment, and the right of it is only transmissible by service and retour, which is not required in tacks or pensions. The Lords, by plurality, found this bond secluding executors was not properly in the law-sense conquest, and therefore it fell to William the heir of line, and preferred him thereto, as going downward and not upward.
Fountainhall, v. 2. p. 315.*** This case is also reported by Forbes:
In the competition betwixt Patrick Begbie, elder brother and heir of conquest to John Begbie, and William Begbie, the younger brother and heir of line, for the right to a thousand merks bond, resting by Mr Alexander Wedderburn advocate, to the said John, his heirs or assignees, secluding executors, it was alleged for Patrick, That he, as heir of conquest, ought to be preferred to the bond, the same being heritable, and conquest by the defunct.
Answered for William the Heir of Line; That nothing could be comprehended under conquest with respect to succession, except lands or tenements, or subjects whereupon infeftment did or might follow; as is clear from the book of Quoniam Attachiamenta, or Baron Laws, cap. 88. and 97. and King Robert the Third's Parliament holden at Scoon, Craig de Feudis, lib. 2. dieg. 15.; the distinction betwixt heritage and conquest being derived to us from the Feudal Law and Norman Custom. 2do, The heir of line succeeds to tacks, (The Earl of Dumbar's Heirs, No 1. p. 5605; Fergusson against Fergusson; No 2. p. 5605.;) pensions, heirship moveables, or other rights not requiring infeftment, though acquired by the defunct, Stair, B. 3. tit. 5. And can there be no tolerable reason assigned why these should fall to the heirs of line, and a sum recluding executors to the heir of conquest? So the brocard that conquest ascends, and heritage descends, must be explained and applied according to the analogy of law and subjecta materia. Again, if there were any Quæstio Voluntatis in the case, law would favour the heir of line; because succession naturally descends, and conquest, as an exception, or deviation from the rule, is not to be presumed. Besides, the heir of line is more favourable, as being the tutor of law, and first subject to debts and burdens: Et quem sequuntur incommoda, eum sequi debent commoda.
Replied for Patrick, the Heir of Conquest; Bonds secluding executors, fictione juris, are like so much land, and the act of Parl 1661 cap. 32 puts them upon the same foot with those containing an obligement to infeft; by declaring all bonds moveable except they bear an obligement to infeft, or seclude executors, both which are made heritable. 2do, Our custom hath determined to the heir of line heirship moveables, as things perishing that wear with the using, and tacks, pensions, &c. as being only temporary rights that expire after elapsing of a definite track of time, which therefore may be called quasi heritable rights. But this is not to be extended to properly heritable permanent rights, such as bonds secluding executors, which must belong to the heir of conquest, whom law still favours in dubious cases, ob prærogativam primogenituræ, and for the preserving of families. 3tio, There can be no argument adduced from our old laws against the heir of conquest's right to bonds secluding executors, since these were not then in use; and by the canon law all bonds bearing annualrent were reprobated. 4to, My Lord Stair, B. 3. Tit. 5. Sec. 10. says, that heirs of conquest succeed to heritable bonds bearing a clause of annualrent; and therefore multo magis ought they to succeed to bonds secluding executors, which are declared heritable in all cases by the foresaid act of Parliament.
The Lords found this bond secluding executors was not properly conquest in the sense of law, and that therefore it fell to William the heir of line, whom they preferred to Patrick as heir of conquest.
