Scottish Court of Session Decisions

This was a summons of reduction and declarator, at the instance of William Stiven, accountant in Dundee, factor loco absentis to James Young, a seaman belonging to that town, but presently abroad, seeking to have reduced certain instruments and titles which had been expede to heritable property in Dundee, to a pro indiviso share of which the said James Young alleged right. The defenders were the trustees of Young's uncle James Brown junior and his four younger brothers and sisters. From the record it appeared that James Brown senior, who died in 1833, was possessed of several heritable subjects in Dundee, amongst which was a tenement in Whitehall Close. James Brown senior left several children, of whom the eldest surviving son was the above-mentioned James Brown junior, whose trustees were called as defenders in this action, and Janet Brown or Young, the mother of James Young, and also of the four remaining defenders.

Under a disposition by James Brown senior, dated 29th April 1797, the subjects in Whitehall Close vested equally in his five surviving children. Janet Brown or Young therefore became entitled to a fifth share pro indiviso. She having died intestate, James Young, as her eldest son and heir of line and conquest, claimed to be in right of her fifth share pro indiviso, as heir of provision under James Brown senior's disposition.

The said subjects in Whitehall Close are the only ones that need be noticed at this stage of the action. Janet Brown or Young was never infeft in her share of these subjects, nor has it been taken up by service or otherwise. In 1849 James Brown junior served himself as nearest and lawful heir of his father James Brown senior in the said subjects and others, and was infeft therein. He thereafter conveyed them to his trustees, the first parties called as defenders in this action, who were infeft. The deeds sought to be reduced were the instrument of cognition and sasine in favour of James Brown junior, and his trust-disposition, with the sasines and instruments which had followed thereon, so far as the same affected the share of the properties claimed by James Young as in right of his mother. As a defence against this action, so far as the Whitehall Close subjects were concerned, the defenders James Brown junior's trustees pleaded inter alia—“(2) James Young, who is said to be in right of his mother Janet Brown or Young, as heir of provision to her shares of the several subjects libelled, not having produced or expede any service or other title instructing that character, the pursuer, as representing the said James Young, is not entitled to insist in any of the conclusions of the present action.”

The Lord Ordinary ( Mackenzie) on 31st January 1871 pronounced an interlocutor, which, in so far as regarded the subjects in Whitehall Close, I sustained the defender's plea in law above stated, and dismissed the action. His Lordship added I the following Note:—

Page: 627↓

“ Note.—The pursuer, as factor loco absentis to James Young, insists in this action in so far as regards the heritable subjects in Whitehall Close, which belonged to the deceased James Brown senior, on the ground that James Young has, under the disposition of the said James Brown, his grandfather, dated 29th April 1797, right to the one-fifth part or share thereof as heir of provision to his mother, Mrs Janet Brown or Young. Mr Brown senior died last vest and seised in the said subjects. By the said disposition he conveyed them to his wife in liferent, and to his lawful children ‘equally among them, and to the survivors or survivor of them, and their heirs or assignees whomsoever in fee.’ Mrs Janet Brown or Young survived her father, and also her mother, the liferentrix, and died intestate, and without having made up any title to the said subjects. James Young has not made up any title by general service to his mother, Mrs Janet Brown or Young, as heir of provision to her under the foresaid disposition, and he has, therefore, the Lord Ordinary is of opinion, no title to insist in the conclusions of the present action. The defenders are the testamentary trustees of James Brown junior, the son and heir-at-law of James Brown senior, who made up a title to and conveyed the subjects to them. They admit that they hold these subjects to the extent of one-fifth for the heir of Mrs Janet Brown or Young. When James Young has, by general service, become vested as heir of provision in the personal right conveyed to his mother by his grandfather's disposition, he will be entitled to call upon the defenders, the trustees of James Brown junior, to convey to him one-fifth share of the Whitehall Close subjects. But before making such a claim, or instituting an action to enforce it, he must complete his title as heir of provision.”

Against this interlocutor the pursuer reclaimed.

Solicitor-General ( Clark) and Mackintosh, for him.

J. M'Laren and Marshall, for the respondent.

Authorities referred to— Mackintosh v. Munro, 23d Nov. 1854, 17 D. 99; Malcolm v. Dick, 8th Nov. 1866, 5 Macph. 18; Rutherfurd v. Nisbet's Trustees, 12th Nov. 1830. 9 S. 3; Cochrane v. Ramsay, 11th March 1828, 6 S. 773–4; Bell's Prin. 1683.

The Court recalled the Lord Ordinary's interlocutor in hoc statu, and, on condition of payment of expenses since the date of the interlocutor reclaimed against, sisted process in order to enable the pursuer to mend his title to sue, by serving as heir of provision or otherwise, as advised.