A person died possessed of a farm worth L. 1600, a house in town in which he resided, and five or six acres in the country on which he had built a small villa. Found, that, in these circumstances, the eldest heir portioner had no right to the country-house as a pręcipuum.
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John Wilson, town-clerk of Glasgow, was proprietor of a farm in Dumbartonshire, worth about L. 1600. He had also a house in the town of Glasgow, where he almost constantly resided, valued at L. 1400.
Besides, Mr Wilson had a small tenement, called Muirend, consisting of five or six acres, at the distance of several miles from Glasgow, where he had erected a small kind of villa; the grounds, which were surrounded with a high wall, being converted into a garden and shrubbery, &c. and to this place he used to retire in the months of summer, for a day or two, as often as his professional engagements would allow.
Mr Wilson was also possessed of some moveable effects. At his death, he having no son, John Smith, in the right of his eldest daughter, claimed as a præcipuum the property at Muirend. In support of this claim, Smith
Pleaded; The right of the eldest heir portioner to the chief mansion-house or country residence of the defunct, does not depend on the relative value of it, or of the garden-grounds connected with it. Neither is it of any importance that, as in this case, the messuage is at some distance from the other parts of the landed property which belonged to the ancestor; Reg. Mag. 2. 27. 28.; Balfour, p. 223; Skene, De verb. sig. voce Eneya; Hope's Maj. pract. tit. De Jure nostro de Succes. in lin. rect.; Craig, 2. 14. 7.; Stair, 3. 5. 11.; Bankt. 3. 5. 84.; Erskine, 3. 8. 13.; 1707 and 1708, Cowies, No 6. p. 5362.; Carnock, No 9. p. 5366.; Peadies, No 10. p. 5367.; 1750, Chalmers, see note on No 10. p. 5369; Ireland contra Govan, No 13. p. 5373.; Forbes contra Forbes, No 15. P. 5378.
Answered; A præcipuum can be claimed only where, after the principal messuage or mansion-house has been set apart for the eldest heir portioner, there is some landed property attached to it, which may be divided among the other co-heirs. Besides, though used as a retreat for a day or two in the summer season, the house in question could not be called the principal messuage or mansion-house of the deceased, whose residence was in the town of Glasgow, where he carried on his business. The consequences of a contrary doctrine would be, to give to the eldest daughter of every petty tradesman or man of business, who may have had a country house, such a preference over her younger sisters as would be exceedingly unjust, and at the same time quite inconsistent with feudal notions; Du Cange, voce Messuagium capitale; Ibid. voce Præcipuum; Stair, 3. 5. 11.; Mackenzie, 3. 8. 25.; Bankt. 3. 5. § 5.; Erskine, 3. 8. 13.; Hawthorn, No 5. p. 5361.; Wallace, No 12. p. 5371.; June 24. 1786, Angus,See Appendix.
The Lord Ordinary found, that, in this case, the pursuer had no right to a præcipuum.
And, after advising a reclaiming petition, with answers,
The Lords unanimously adhered to the Lord Ordinary's interlocutor.
Ordinary, Lord Justice-Clerk.Act. Mat. Ross.Alt. Craig.Clerk, Home.
Fol. Dic. v. 3. p. 264. Fac. Col. No 217. p. 455.
