Scottish Court of Session Decisions

Subject_1 HEIR PORTIONER.

Jean Wallace, and John Buchanan Writer in Glasgow, her Husband,
v.
Janet Wallace, and Thomas Buchanan of Kirkhouse, her Husband

Date: 20 January 1758
Case No. No 12.

A dwelling-house, &c. built within a burgh of barony discontiguous to the rest of the heritor's landed estate, falls not to his eldest heir portioner as a præcipuum.

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Alexander Wallace sheriff-clerk of Renfrew, died possessed of moveables to the extent of L. 3000 Sterling, and heritage to the value of about L. 1000 Sterling. He left two daughters, Jean and Janet Wallaces; and as he made no settlement, his estate fell to be divided between them.

Alexander Wallace's heritable estate consisted of 70 acres of ground yielding about 200 merks, situated at the distance of two or three miles from Paisley; of a house and offices, which he built for his own residence, on half an acre of ground purchased by him at the west end of the town of Paisley, and held feu of the burgh; and of six or seven acres of land, lying near half a mile distant from his house, which he purchased, and inclosed, after building the house, and sometime let to a tenant, but afterwards took into his own possession.

Jean, the eldest daughter, brought a process against her sister Janet, for having the house, offices, and garden, at Paisley, as the messuage or mansion-house of the defunct, declared to belong to her as a præcipuum, in respect of her primogeniture, without being liable to give a recompence to her sister.

Pleaded for the pursuer, By the custom of this country, female heirs succeed equally in lands, and heritable subjects that admit of division; but such subjects and rights as are indivisible, devolve, according to the law of primogeniture, upon the eldest heir portioner. In judging what subjects are divisible or not, the nature of the subject, and not the value or estimation of it, is considered. The brief of division only concerns such subjects as of their own nature can admit of a partition, and does not apply to indivisible subjects, or direct them to be valued or sold, and the price divided. Nor does the law distinguish between mansion-houses used by heritors of lands for their own proper residence, but built in the form of an ordinary dwelling-house, and such houses built like a tower or fortalice. Of whatever form the house is, it falls to the eldest heir portioner, together with the offices and garden. So it was found, 26th February and 5th March 1707, and 24th June 1708, Cowie contra Cowie, No 6. p. 5362; and in the competition among the heirs portioners of James Peaddie merchant in Glasgow, No 10. p. 5367; and no recompence was allowed. The house in question was entirely possessed by the defunct, and built for the accommodation of his single family; and therefore ought to belong to the pursuer.

Answered for the defender, By our ancient law, the eldest daughter was entitled to the messuage, or principal mansion-house upon the estate of her father; but under this quality, ita quod in aliis rebus satisfaciet aliis sororibus ad valentiam; Reg. Maj. L. 2. C. 27. § 4. C. 28. § 3.; Craig, lib. 2. dieg. 14. § 7. It is true, that a few later decisions have found the eldest daughter entitled to the messuage, without recompence; but the point cannot yet be held as so established; and, at any rate, these decisions will not be extended still further, contrary to the common law of succession among heirs portioners, which distributes equally every subject, capable by its nature either of division or of valuation. The brief of division is an executorial of the law, which confers the succession of the defunct's heritable estate upon his daughters per capita; and therefore must be understood to direct the Sheriff, and the assize called by him, not indeed to divide every field, farm, house, or mill, but to make the several allotments, according to the just value of the several subjects which compose the heritage. Titles of honour and jurisdictions are incorporeal rights, which, from their own nature, and that of the grant of them, cannot be vested in more than one person at the same time; and therefore fall to the eldest. A single superiority too goes the same way, in respect to the vassal's interest, which forbids a division; but, then, being properly a right of lands, a recompence is due; and if there are more superiorities, they are distributed among the sisters.

Thus it is plain, that every individual subject does not fall to the eldest without recompence.—But, at any rate, it is sufficient to exclude this pursuer's claim to the house in question, that it is not a mansion-house standing on the defunct's land estate, which lies at a considerable distance from it, but a house built within the town of Paisley, contiguous on one side to other houses in the town, and held feu of the burgh; so it is merely an urban tenement, which was intended for the defunct's residence when attending his business as clerk to the Sheriff-courts held there. It therefore falls under the division, according to the opinion of Craig, Stair, and other authors.

Replied for the pursuer, The house may be truly paid to be situated in the country, as there are none of the houses of the burgh that lie without it, or separate it from the adjacent fields; and it cannot come under the description of borough-houses mentioned by Lord Stair, which are ordinarily set per contignationes, and built for the accommodation of several families. Most of the fields for two miles round hold of this burgh of barony; but that could never hinder an heritor from building a proper mansion-house upon his own grounds; and although this house and garden are not contiguous to the other lands of the defunct, yet that circumstance ought not to make any variation in the case, as a part of his lands were so near as to afford him the conveniency he wanted for keeping his horses and cattle.

The Court seemed to be of opinion, that this house was not properly a messuage or mansion-house, in respect of its situation.

‘The Lords sustained the defence, assoilzied the defender, and decerned.’

Act. Ferguson. Alt. Miller. Clerk, Kirkpatrick. Fol. Dic. v. 3. p. 262. Fac. Col. No 90. p. 161.