Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Sir William Moncrieff
v.
Creditors of His Father

Date: 1 March 1765

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In this case the Lords determined unanimously a very general point concerning the transmission of our rights.

If a man, in his contract of marriage, obliges himself to pay or secure a sum of money in favour of the heirs of the marriage, and does not implement that obligation, or if he shall settle a land estate upon the heirs of the marriage, and afterwards shall sell that estate, but shall leave other subjects; in either of those cases there is a right of action in the heir of the marriage, which vests in him ipso jure, without any service, like a legitim, or a tack ; and being so vested it will be affectable by his creditors, either during his life or after his death, by adjudication; and it cannot be transmitted to his heir without a general service. But we must distinguish this case from the case when the heir of the marriage has a right of action, not to recover a sum of money, or the value of a land estate sold, as in the cases above supposed, but the land estate itself settled upon him by the contract of marriage ; as, for example, suppose the father has gratuitously alienated such land estate to his second son or any other person, the heir will have a direct action for reducing the disposition and evicting the estate from the disponee, and he may prosecute this action without a service, but he can never have any right to the subject without a service. For, though he were not only to insist in the action, but bring it to a conclusion, yet, if he die without service, the right to the subject would descend to the next heir of the marriage, in the same manner as, in the common case of a reduction upon the head of death-bed, which may be likewise pursued without service, both the subject and the concomitant right of action will descend to the next heir of the investiture ; for it is an established rule of the law of Scotland, that, though obligations and rights of action may be transmitted from the dead to the living without a service, no land estate can.