Scottish Court of Session Decisions

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

Cairncross
v.
Heatly and Myrtle

Date: 8 August 1765

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This was a question concerning the succession of the estate of Hillslop. The defenders in this process had got themselves served heirs-portioners to the late ladies of Hillslop, as being connected to them by females, and upon their service they got possession of the charter-chest of the family. The pursuer of this process, William Cairncross, insisted in a reduction of this service, alleging that he was connected to the ladies by the male line, and therefore was preferable to the defenders. A proof was allowed him, which coming to be advised, he insisted that, in order to support his proof by witnesses, he ought to have the inspection of the charter-chest and all the papers belonging to the family, which was in the possession of the defenders; which accordingly the Lords allowed upon this ground,—that it was a competition of heirs about a succession, and that although the defenders had got into possession by getting themselves first served, yet the case was to be considered as if they had been all competing upon brieves before the inquest, and they thought the case was very different from the case where the right to the lands is attacked, not the possessor's right as heir.

N.B.—This case comes pretty near the case of Douglas, where the right to the estate, as it stood in the predecessor, was not attacked, but his right to succeed; and yet it was found, in the last resort, that the pursuers who claimed to be heirs of the estate were not entitled to a general exhibition.