Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. VII.

Rights having tractum futuri temporis.

Andrew Simpson Clerk of Dunfermline
v.
Robert Walker, Son to the deceased William Walker, late Provost there

Date: 19 February 1714
Case No. No 45.

A sum was provided to a husband and wife in liferent, and to their children in fee, whom failing, to the wife's heirs and assignees. The husband and wife having died without issue, it was found that the sum belonged to the wife's heirs, and not to her executors.

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Mr George Walker, in his daughter Janet Walker's contract of marriage with William Walker, obliged himself to pay to them, and to the longest liver of them two in liferent, and to the heirs to be procreated betwixt them in fee, which failing, to Janet's heirs or assignees, the sum of 1000 merks, at the terms therein mentioned. Both William Walker and Janet his wife having died without children of the marriage, Andrew Simspon, as deriving right from her executors, pursued Robert Walker, heir to William Walker the husband, to whom the tocher had been paid, for re-payment.

Alleged for the defender; The tocher being payable to the husband and the wife, and the longest liver of them two in liferent, and to the heirs of the marriage in fee, (which is a plain tailzie) it is of the nature of an heritable subject, which can only fall to the wife's heirs, and not to her executors.

Auswered for the pursuer; By act 1661, cap. 32. all bonds are declared moveable except in two cases, viz. where infeftment hath followed, or where executors are excluded; neither of which can be pretended in the present case; so that the subject being sua natura moveable, the tailzieing of it does noways alter it. And in all moveable subjects, any substitute's right upon the failure of the persons premised in the destination, is established by a summary cognition before the Commissaries or other proper judges, that the persons premised in the destination are deceased; for it were impracticable by our law and form to establish a right to such by a service. Yea, the Lords have found that even in heritable subjects an heir of provision's right might be ascertained or established, either by the acknowledgment of the contending party, or by a summary cognition that such a one was the heir of provision, respected in the destination; as was done in the case of John Carnegy against the Creditors of Kinfawns, See Service and Confirmation.

Replied for the defender; Though the subject in dispute were of its own nature purely moveable, yet it being tailzied to the wife's heirs by the contract, no person could make up a title thereto without a service, cognoscing the person pretending right by a tailzie to be the heir. So that is of the nature of an heritable subject, to which confirmation is no sufficient title. The cited decision doth not meet the case, John Carnegy being the first heir substitute, whereas here it must not only be cognosced that such persons represent, but also that the heirs of the marriage failed, which can only be by service.

The Lords found that the tocher doth belong to the wife's heirs, and not to her executors.

Forbes, MS. p. 27.