Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 LEGITIM.
Subject_3 1. Effect of a discharge in a contract of marriage upon the wife's right of legitim, or claim upon her father's executry. 2. In what cases the heir is entitled to Legitim.

Henrietta Sinclair
v.
Charles Sinclair of Olrick

1768. June 15, and November 23.

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(Faculty Collection, p. 519; Dictionary, 8188.)

Pitfour. A discharge of all claims implies all claims whereof the party discharging can compel performance. The legitim is of this nature; for a father cannot disappoint a child of the legitim: but the stipulation of a discharge of a right of succession is inept; for why should I desire a discharge from a child, of what I may settle without the child's consent? It is true that there sometimes occurs a discharge of all that the child can succeed to, and this is held to be a virtual testament in favour of the other children. In heritage, the heir cannot be prejudiced by exclusion, for it is necessary that another heir be instituted. But there is a difference in moveables; there, exclusion of one child implies an institution of other children. General words of ask and crave, will not apply to the dead's part.

Gardenston. There are here additional words,—Upon any account whatever. They are such as must have a meaning. A discharge of what could be asked through the husband's death, has been extended to what could be asked through the wife's death.

Pitfour. There the words were only descriptive and explanatory, and the clause was so complete without them, that it implied all. The Court found it to imply.

Monboddo. I would give some operation to the general discharge; but a right of future succession must be discharged in express words. This sort of renunciation was quite improbated by the Roman law: It has been admitted, indeed, in modern practice, as appears in Antonius Faber's Decisiones Sabaudicae; but the renunciation must be upon oath. I do not know whether this ever took place with us. The same decisions show, that the renunciation must be in express words; and this, I think, is also the rule with us. Had the words been in and through decease of the father, the case might have been different.

Coalston. There is a distinction between the case of heritage and that of moveables. An heir cannot effectually renounce, but an executor may. If that had been the import of this clause here, I should have thought it sufficient. The general words are not altogether ineffectual. They would import a renunciation of what Henrietta Sinclair could have claimed by her mother's marriage-contract, or the like.

On the 15th June 1768, the Lords found the discharge does not exclude the daughter from her father's executry.

For the daughter, T. Swinton, junior. Alt. A. Lockhart. Reporter, Auchinleck.

[A petition was given in against this interlocutor: on advising which, the following opinions were delivered:]—

Pitfour. The legitim is not extinguished. Though Henrietta Sinclair has renounced, her brother has not; and he is entitled to it. Legitim, in law, is not confined to younger children: the only thing that bars the elder brother, is his obligation to collate. I question whether there is here room for collation; the legitim belongs to all the children. This is laid down by Lord Stair and by Sir James Stewart, and so it was found in the case of Justice, 1737. It is a principle, that, whenever a child renounces its legitim, habendus est pro mortuo; and it is so laid down in all our books. Can the sister say to her brother, You must collate? No; for collation is only to be claimed by parties who have a right in the subjects to be collated; and she has none, because she renounced. Suppose the sister died without renouncing, and left children, the heir has the legitim: the children of the sister cannot make him collate, for that they are excluded from the subject by their mother's death. Suppose the father has left a universal legatee, he concurs with the brother and seeks the executry. Good: But the legitim goes to the brother notwithstanding. So, in the same way, the universal legatee excludes the sister, because she has renounced. Suppose the relict competes with the brother, she will not exclude him, but she will exclude the sister. The only thing that creates a difficulty, is Agnew's case in 1749, where the direct contrary was found. In that case the Bench was divided, and the decision was not relished. A decision in an arbitrary question is of great authority; not so when pronounced on wrong principles. The cause was not fully pleaded at first; and some Judges are like the old Bishop, who, having begun to eat the asparagus at the wrong end, did not choose to alter.

Barjarg. The case of Agnew is in point: that cause was fully argued, and I would follow it.

Monboddo. Foreign law is matter of fact; but our law ought to be a matter of reason and principles. I am not determined by precedents. I think the judgment in the case of Agnew was demonstratively wrong, as Lord Pitfour has shown.

President. It is an error to say that an heir is not entitled to the legitim: He is entitled; but he may sometimes be debarred from taking it, unless he collates. The decision in the case of Agnew was not unanimously pronounced. The President, Justice-Clerk, (Tinwald,) and Drummore were for it; but Kilkerran and Elchies were against it.

On the 29th July 1768, the Lords found Charles Sinclair entitled to the legitim.

On the 23d November, 1768, they adhered.

Act. J. Swinton, D. Rae. Alt. A. Lockhart, D. Armstrong. Reporter, Auchinleck. No votes at last hearing.