Not excluded by a disposition from the husband, followed with actual possession of the lands, but not with infeftment.
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Hugh Macculloch sold his lands of Grange, and the purchaser entered into possession, but did not take infeftment. After Hugh Macculloch's death, his widow, Agnes Maitland, insisted to be kenned to her terce. James Macculloch, the eldest son, objected; and
Pleaded: Even at a time when feudal ideas were much more prevalent than at present, some of our most eminent lawyers were of opinion, that where a husband had sold his lands, his widow, after his death, could not claim a terce. The consequence of this would be, to disappoint the purchaser, without benefiting her, as she must, at any rate, be sufficiently compensated by the proportional increase of her share of the moveable effects. Besides, in this manner the terce would, contrary to the opinion of all our lawyers, become a burden on the moveable estate, the purchaser having retention of the price of the lands, which goes to executors. Accordingly, in a competition between a compriser, who is a judicial disponee, and a widow claiming her terce, it was found, although the compriser was not infeft, that she was excluded. And in the same manner it has been determined, that an adjudger, after a charge given to the superior, was preferable to the widow claiming this legal provision; Dirleton, voce Terce; Sir Thomas Hope, voce Life-rent; Dictionary, voce Heritable and Moveable, Terce.
Answered: The husband's sasine is the measure of the wife's terce, and no proceeding which has not the effect of completely denuding him, can preclude her right. Even where the husband dies in bankrupt circumstances, and adjudications have been led, or where he has granted dispositions in security containing clauses of infeftment; still, if infeftment has not actually followed, it is now firmly established, that she is entitled to be kenned to her terce, the only two questions which the jury are called upon to determine upon being—1st, Whether the widow was lawful wife to the deceased? and, 2dly, Whether the husband died seised in the lands specified in her claim? The determination of the case, in which it was found, that an adjudication, followed with a charge against the superior, was sufficient to exclude the terce, has since been justly departed from, this form, however effectual, by virtue of an express statute in the case of competing adjudications, being of no consequence in any other; Stewart's Answers to Dirleton's Doubts; Craig, B. 2. Tit. 22. § 38; Stair, B. 2. Tit. 6. § 18; Bankton, B. 2. Tit. 2. § 16; Erskine, B. 2. Tit. 9. § 46; 12th December, 1677, Lady Fraser, No. 3. p. 233; 9th February, 1725, Sarah Carlyle against Creditors of Easter Ogle, No. 34. p. 15851.
The Sheriff having cognosced Agnes Maitland, the widow, to her terce, James Macculloch, the heir, preferred a bill of advocation.
The question was reported on memorials, by the Lord Ordinary on the bills, when the Court were unanimously of opinion, that the judgment of the Sheriff was well founded.
“The Lords refused the bill.”
Reporter, Lord Swinton.Act.Cha. Hay.Alt. Fraser-Tytler.
Fac. Coll. No. 31. p. 5o.
