Elizabeth Cruickshanks and Husband, v. Jean Cruickshanks and Others
Date: 27 May 1801 Case No. No. 2.
Heirship moveables are dividedequally among heirs portioners.
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The five daughters of Patrick Cruickshanks succeeded to his estate of Stracathro, as heirs portioners. His brother had been appointed by him his executor.
Elizabeth, the eldest daughter, with consent of her husband, brought an action against her sisters, and their tutors, for division of the succession, in which she claimed the mansion-house, offices, lawn, gardens, and pigeon-houses, as præcipuum, and also heirship-moveables.
The Lord Ordinary “sustained the pursuer's claim jure præcipui, to the mansion-house, offices thereto belonging, the lawn around the mansion-house, the new and old gardens, and the two pigeon-houses.”
This interlocutor was acquiesced in.
His Lordship ordered informations on the claim for heirship moveables.
The pursuer
Pleaded: Heirship moveables are given to the heir to enable him to support the dignity of the family, and the duties of hospitality in the mansion-house, which devolve on the eldest heir-portioner, with more slender funds to support them than any other heir.
Heirship-moveables are indivisible, and fall naturally to be possessed by the held of the family, which the eldest heir-portioner undoubtedly is, and they belong to her exclusively upon the same principle as the mansion-house, Ersk. B. 3. T. 8. § 13, 17.
Answered: The first trades of heirship-moveables appear in the Leges Burgorum, c. 125; and from their beginning among burgesses, the reason of their introduction must have been rather to indemnify the heir for his being excluded from the moveables, which might be more valuable than the heritage, than the idea of supporting the dignity of family. They were exfended to the heirs of barons, gentlemen, and freeholders, only by act 1474, c. 53; Mackenzie's Obs. on this act; Ersk. B. 3. T. 8. § 17.
The act of Parliament mentions “heirs” in general terms, and therefore must apply to females as well as males.
Now, heirs portioners sometimes are, and sometimes are not. executors of the deceased.
In the last situation, are grand-daughters by a son predeceased, where the grandfather leaves other children. In such case, the heir-portioners collectively bear the character of heirs; as such, they are entitled to all the privileges, and the heir-ship moveables fall to be equally divided among them, as it would be quite anomalous to hold, that proper should be more divisible than constructive heritage.
There is stilt less reason for making any distinction among them, when (as in the present case), ab intestato, they are executors as well as heirs of the deceased.
Besides, as the original principle of succession suggests, that children should succeed equally to their parents, any deviation from it is to be considered as an exception from the general rule. Such is primogeniture, which arose from the feudal system, or the state of society which produced that system. Even in the more early periods of the feudal law, the fee opened equally to all the sons. This Was altered by the Leges Feudorum only as to military fees, and as to others, an equal division remained.
Such still continues to be the law in some parts of England; Robinson's Law of Gavelkind, 12, 34, 78, 110, where the original rule universally prevails as to females; Black's Law of Descents, § 3. Some articles do not indeed admit of division, in which case, the eldest heir has the choice, but only on giving an equivalent; Blackstone's Commentary, Vol. 2. p. 190.
By our older law, the eldest heir-portioner gave an equivalent even for the mansion-house; and an equal division or obligation to give an equivalent for articles indivisible, remains as to heirship-moveables; Craig, Lib. 2. D. 17. § 7.; Stair, B. 3. Tit. 5. § 9.; Reg. Mag. Lib. 2. C. 27. § 4. C. 28.; Craig, Lib. 2. D. 14. § 7.; Bankt. B. 3. Tit. 5. § 84.
An Opposite opinion is indeed delivered by Mr. Erskine, founded partly on the latter decisions as to the mansion-house, and partly on the decision, 16th January 1725, Executors of Lady Garnkirk, No. 7. p. 5366. But this opinion is erroneous. Exceptions from general rules are not to be extended to analogous cases, and the ultimate decision, in the case of Garnkirk, was against the exclusive right of the oldest.
The Lords, with one dissenting voice, “found, That the moveables in this case divide equally among the heirs portioners, without any præcipuum to the eldest.”
Lord Ordinary, Hermand.Act. C. Hay.Alt. D. Williamson.Clerk, Gordon.
Fac. Coll. No. 231. p. 524.
