Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 HEIRS-PORTIONERS.

Cathcart
v.
Rochead

Date: 16 February 1773

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A præcipuum is due to the eldest heir-portioner succeeding ab intestato; which the law allows to her on account of her birth and seniority, without paying an equivalent: but where heirs portioners do not succeed ab intestato, but as heirs by a special deed, no præcipuum is due: the indivisible subjects will go to one, paying a recompense in money to the rest.

Accordingly, the estates of Inverleith and Darnchester, going to four heirs-portioners equally, by and in virtue of a tailyie and settlement made by old Sir James Rochead; and Mr Cathcart of Carbrester, the heir of the eldest heir-portioner, having claimed a præcipuum, “The Lords, 16th February 1773, found that, in this case, the claimant, James Cathcart, as in the right of the eldest daughter, is not entitled to a præcipuum, as in the case of heirs portioners; and remitted the cause to the Sheriff to proceed accordingly;—reserving to the parties to be heard before him, to whom the mansion-house, offices, garden, and planting about the same shall belong, he paying a recompense.”

Against this interlocutor Mr Cathcart having reclaimed, the petition was appointed to be answered. But no answers were given in; the point was settled between them amicably.

In arguing this cause, it was held to be law, that, in the case of heirs-portioners ab intestato, a præcipuum was due, without an equivalent; Cowie against Cowie, anno 1707 and 1708; case of Peadres, anno 1743; case of Gadgirth, anno 1750; and November 1765, Govan against Ireland.