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Dame Mary Mead v Archibald Swinton, Common Agent in the Ranking of the Creditors of the late Sir Samuel Hannay. [1796] Mor 15873 (24 February 1796)
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[1796] Mor 15873
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[1796] Mor 15873
Subject_1 TERCE.
Dame Mary Mead v. Archibald Swinton, Common Agent in the Ranking of the Creditors of the late Sir Samuel Hannay
Date: 24 February 1796 Case No. No. 47.
Where there are two mansion houses on an estate, has the widow a right to the second, as an appendage of her terce?
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Sir Samuel Hannay died infeft in the lands of Kirkdale, on which there was an old mansion-house, where he and his family resided. A few years before his death, he built, close by it, a more commodious house, where he proposed to have lived, but he died before it was completed.
Lady Hannay claimed the old mansion-house, as an appendage to her terce, on the ground, that where there are two mansion-houses, the widow is entitled to the second; Craig, L. 2. D. 22. § 29.; Ersk. B. 2. Tit. 9. § 48.; 29th June, 1773, Montier, No. 38. p. 15859.
She was opposed by the common agent in the ranking of Sir Samuel's creditors, who stated, in the first place, That in point of law, it seemed extremely doubtful, if in any case the widow had right to the second mansion-house, no mention being made of such right either by Balfour or Stair, nor any decision finding her entitled to it; 2dly, That at all events there was no room for such a claim here; it being plain, from Sir Samuel having built the new house within a few yards of the old one, that he must have intended either to have taken it down, or to have converted it into offices.
The question first came before the Sheriff of Kirkcudbright, who having found that “Lady Hannay had no claim upon either of the houses,” she complained of the judgment by bill of advocation.
The Lord Ordinary on the bills took the case to report.
The Court went on the specialty stated by the common agent, on which they were clear that Lady Hannay's claim was groundless. Some of the judges, however, expressed great doubts whether, even independent of the specialty, it had any foundation in law.
The Lords unanimously refused the bill.
Lord Ordinary, Stonefield.Act, Maitland.Alt, Arch. Campbell, jun.Clerk, Menzies.
Fac. Coll. No. 204. p. 487.
