Scottish Court of Session Decisions

This is an action of multiplepoinding raised by John Knox Napier of Letham, in the county of Lanark, for the purpose of having determined who had right to a provision in the settlement of his mother Mrs Napier, whereby she burdened her said son and the heritage left to him with a provision of £1300 to her daughter Mary, who became the wife of Robert Orr, cashier at Blantyre Works, and died in 1861 leaving four children, Robert, Mary, James, and Margaret Jane, who all claimed in this action, except Mary, who died in 1860, and whose interest was claimed by her husband William S. Burns.

In November 1864 it was found, 1st, that the provision in favour of Mrs Orr vested in her during her life, and having been created a real burden, that it was a heritable right; 2d, that the right was carried to and vested in the claimant's father Robert Orr by his marriage contract in 1837; 3d, that on the death of Robert Orr, which took place in 1851, the said provision descended to the claimant Robert Orr as his heir-at-law; 4th, that the said Robert Orr having collated the heritage of his father with his brother and sisters, the fund in medio (the foresaid provision of £1300) now belonged in equal shares to Robert Orr, James Orr, Margaret Jane Orr, and the party or parties in right of the deceased Mary Orr or Burns. With these findings the case was remitted back to the Lord Ordinary.

The Lord Ordinary (Ormidale) found that the claimant James Orr, as the younger brother and heir in heritage of Mrs Burns, was the party in right of the share of the fund which pertained to her, and therefore preferred him to two-fourth parts of the fund, and Robert Orr and Margaret Jane Orr to one-fourth thereof each. Robert Orr and William S. Burns both reclaimed.

It was argued for Burns, that although it had been found that the provision was heritable in its own nature, it had become moveable in consequence of the collation of Robert Orr, through which Mrs Burns became entitled to a share of it, and being moveable it had passed to him jure mariti. Both Robert and James Orr concurred in opposing this argument; but a second question arose betwixt them, which was, whether the provision was heritage or conquest. In the one case James was entitled to it as his sister's younger brother; in the other Robert was, as her elder brother.

The case was debated on Friday and Saturday, and to-day the Court intimated that as both points raised were of importance, it was desirable to have them argued in writing. Cases were therefore ordered.