One person being both heir of line and of provision, served himself heir in a subject falling to him only as heir of provision; but, at the same time, as he was retoured simply tanquam legitimus et propinquior hæres, it was found his service was as heir of line.
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Sir John Ayton of that Ilk having married to his second Lady, Dame Margaret Colvil, he gave her a large jointure and liferent, and provided her children to 40,000 merks, besides the half of the lands of Kincraigie. Mr William Ayton, his eldest son of the first marriage, finding these provisions heavy and exorbitant, he serves himself heir to his father cum beneficio inventarii, and raises a reduction, improbation and declarator, against his mother-in-law, and her children, for restricting the extravagant provisions made in their favours, such as the estate, with the other debts on it, was not able to bear, and as being evidently in defraud of his mother's contract of marriage, providing the estate of Ayton to the eldest son to he procreated thereof; whereas, if these subsisted, there would be little or nothing left free to him, who had served inhibition against his father on the obligements contained in the first contract; and though law sustains rational deeds given by parents in second contracts, yet it will never authorise, nor countenance, exorbitant provisions, which wholly absorb and exhaust the fund, by which only the first contract can be fulfilled. Alleged for the Lady and her children, denying their provisions were immoderate, the value of the estate, and fortune left by her husband, being considered, yet he could quarrel none of them, because he had served himself heir of line simply to his father, and so was bound to warrant all his deeds, et quem de evictione tenet actio eundem agentem repellit exceptio; for by his retour produced, (which is his active title in this process,) the inquest in answer to the second head of the brieve retours him, that he is legitimus et propinquior hæres D. Joannis Ayton patris sui; whereas, if he had designed to have entered only as heir of provision, and of the marriage, it would have bore, that he was hæres provisionis virtute contractus matrimonialis initi inter dictum patrem et matrem suam, which this does not; and in a late case, betwixt Sir Robert Home and Sir Patrick Home, No 11. p. 14011. the Lords found a service of this kind made him simply and universally heir. Answered, He oppones his service, which materially is qua heir of provision, though that reduplication is not expressly inserted; for in the narrative it cognosces him heir of the marriage, by designing him heir procreated betwixt Sir John Ayton and Dame Magdalen Stewart, his spouse, which must regulate all the subsequent clauses. Next, both the characters of heir lineal and of provision, meeting in his person, he may make use of any of them; and it is a mere quibble to confine him only to be heir of line. 3tio, His entering cum beneficio inventarii speaks plainly his design of quarrelling these exorbitant deeds, for otherwise he would have entered simply, as was practised before the 24th act 1695. Replied, His designation by his parents signifies no more than if they had mentioned his grandfather and grandmother; for it relates to no special right arising to him as heir of provision, or any succession by virtue of a contract of marriage; and though he be vested with a double character, and both concur in his person, yet he has plainly elected to enter by the simple title as lineal heir, aditio hæreditatis being actus legitimus qui nec recipit diem nec conditionem. And as to the third, his beneficium inventarii frees him from any representation beyond the value of the estate, but gives him no privilege to make him a creditor as heir of provision, unless he had been so retoured; besides, by the act he was bound to have registrated his inventory in the clerk's books within the year, which he has neglected to do; so his making an inventory can be of no profit to him. Ayton cited also decisions for him, as betwixt the heir-male of Livingston and Menxies, No 10. supra; and Janet Kennedy, Howat and Cumming, No 41. p. 6441.; and it was a rigour no civility nor law could approve, upon the misplacing of a word, to cut him off from so well founded a complaint as the father's undue exheredation of him; for such, upon the matter, were the vast provisions given to the bairns of the second marriage. The Lords found, as his service and retour stood conceived, he was heir of line simply, and not heir of provision, me referente.
Fol. Dic. v. 2. p. 345. Fountainhall, v. 2. p. 588.*** Dalrymple reports this case:
1716. November 27.—Sir John Ayton, by his first contract of marriage, having provided the lands and barony of Ayton in favours of the heirs-male of that marriage, Mr William Ayton, the only son of it, pursues a reduction of certain deeds done by his father in favours of his lady, and son of the second marriage, whereby the said lands and barony of Ayton will be overburdened, in prejudice of the provisions of the first contract.
It was alleged for the Lady, That the pursuer was served and retoured heir of line to his father, and so could not quarrel any of his father's deeds, whom he universally represents; whereupon a debate ensued, whether the pursuer was to be considered as heir of line, or heir of provision by his retour produced; on which the Lords found, that he was heir of line, and, as such, could not quarrel any of his father's deeds. He reclaims, and allegeth, That his retour did not instruct him to be heir of line, but heir of provision; because being retoured heir in special to the barony and lands of Ayton, the instruction of his title to that barony was and could be no other than the charter and infeftment proceeding upon the pursuer's mother's contract of marriage, which charter and contract is the very title of this pursuit; so that albeit he be designed legitimus et propinquior hæres, yet the res gesta clears that nothing was meant, but that he was hares virtute contractus matrimonialis; and the Lords are in use to interpret retours according to the true meaning of them, and not to suffer parties to take captious advantage of words, as in the case of Ferguson against Irvine, 3d January 1712, No 24. p. 5261.; and the Earl of Dalhousie against Hawley, 13th November 1712, No 13. p. 14014. In both these cases, heirs-male being also heirs of line, and serving tanquam legitimi et propinquiores hæredes in a subject provided to heirs-male, and the said heir so served deceasing, questions fell in about the succession betwixt the heir-male, and the heir of line of the last infeft. The heir of line claimed the succession, because the last infeft was retoured heir in special, tanquam legitimus et propinquior hæres to the former fiar; which character of the legitimus et propinquior hæres would not agree to the last infeft; yet the Lords preferred the heir-male of the vassal last infeft, because in his person did concur both the characters of the heir of provision and the heir of line; and therefore the destination of succession, in the original infeftment, was to be the rule of succession. Just so, the pursuer having both the characters of heis of line and provision, and being specially retoured, only in the subject falling to him as heir of provision, his service must be constructed to be in that capacity.
It was answered, The decisions insisted on do not concern the present question. It is very true, indeed, that where an heir-male, or heir of provision, is likewise heir of line by serving legitimus et propinquior hæres, in the subject falling to him as heir of provision, he hath thereby a right to the subject destinate in favours of heirs of provision; but it is as true he has right to every subject that could fall to him as heir of line, and thereby, upon his decease, the subject falling to him as heir of provision, would descend according to the destination of succession contained in the provision, and what did otherwise belong to him, and his heirs and assignees, would fall to his heirs of line, agreeably to the decisions above mentioned. But it is as certain, that he, who having both the characters in his person, and is served tanquam legitimus et propinquior hæres, is universally liable to all his predecessor's facts and deeds, and consequently can quarrel no deed done by his predecessor; and thus the pursuer understood his retour to give him right to heritable rights falling to him as heir of line, in as far as being served cum beneficio inventarii, he gave up other lands belonging to his father, wherein his father was not infeft, to which he was served.
2do, The stile of a brieve and retour, as general heir, is different from the stile of a brieve or retour as heir of provision. The first bears, that the raiser of the brieve is legitimus et propinquior hæres simply, and the last bears legitimus et propinquior hæres virtute provisionis, and then mentions the special writ whereby the succession of the subject, to which he is to be served, is provided to him.
It was replied, It is true, he being served heir cum beneficio, did afterwards insert in the inventory, a subject not falling to him as heir of provision, which was an error; but that alters not the point of law, nor affords any benefit to the defender; because the question is, whether by the service ipso momento he become liable as heir of line to all his father's debts and deeds, or only as heir of provision. And, if he was not ipso facto liable, his inserting other subjects in the inventory could afford no further benefit than that the pursuer could affect him in valorem of these other subjects; but could not make him become heir in any other terms than his retour did import at the time of his service.
“The Lords adhered to their former interlocutor, and found that the pursuer, by his service, was heir of line, and could quarrel none of his father's deeds.”
