Scottish Court of Session Decisions

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), sec. 37, enacts—“The distinction between fees of heritage and fees of conquest is hereby abolished with respect to all successions opening after the commencement of this Act, and fees of conquest shall descend to the same persons, in the same manner, and subject to the same rules, as fees of heritage.”

James Walker, pursuer, brought an action against James Walker junior and another (trustees of his deceased wife Mrs Walker) and others, defenders, claiming courtesy out of certain heritable property in which the wife, having acquired it by purchase with her own funds, was at the date of her death infeft.

The defenders, inter alia, pleaded—“(2) The deceased not having died possessed of any heritage in respect of which courtesy is due to the pursuer, the conclusions as regards courtesy should be dismissed.”

On 17th June 1916 the Lord Ordinary ( Ormidale) sustained the defenders' second plea, and dismissed the action as regarding courtesy.

Opinion.—“Mrs Walker died on 6th January 1916, survived by her husband, the pursuer of this action, and by three children of their marriage, one of whom, James, is heir-at-law of his mother.

As father of his deceased wife's heir the pursuer maintains that he is entitled to courtesy out of certain heritable property in which his wife was at the date of her death infeft. It is not disputed that Mrs Walker acquired the property, not by succession, but by purchase with her own funds. The heritable property is therefore conquest of the wife, not heritage.

It is admitted by the pursuer that prior to 1874 courtesy was not due from conquest, but it is maintained that by section 37 of the Conveyancing Act of that year the distinction between conquest and heritage was abolished to all intents and purposes, with the result of rendering conquest subject to courtesy just as heritage is.

The question does not appear to have come up for decision. That is, Mr King Murray says, because it has been regarded as too clear for argument. The practice, he

Page: 57↓

understands, is in accordance with the construction which he seeks to put upon the section.

What the section says is—‘… [ quotes, v. sup.] …’

The expressed purpose of the section therefore is to abolish the distinction between fees of heritage and fees of conquest. Now courtesy cannot be termed a fee of conquest or a fee of heritage. It is in no sense an estate of fee. The word ‘fee’ is ordinarily used in contradistinction to liferent in matters of succession. Courtesy is a proper estate of liferent. It does not fall directly therefore within the purview of the section. It is said, however, that it is a rule affecting the descent of a fee of heritage that it passes to the heir burdened with courtesy, and that therefore the descent of a fee of conquest is now subject to the same rule, with the result that courtesy is due out of conquest also.

I am not prepared so to hold. In my opinion the section does no more than abolish the distinction between the lines of succession in heritage and conquest. That seems to be the plain meaning of its language, so that the descent of conquest will no longer be to elder brothers, but will be, as in the case of heritage, to younger brothers. To give the section the meaning contended for would be to impose on conquest a burden from which hitherto it has been free. Had that been intended one would have expected to find it provided in perfectly clear and unequivocal terms.

It is upwards of forty years since the Act of 1874 became law, and yet by no author or editor do I find that courtesy is said now to extend to conquest. On the contrary, Lord M'Laren in Wills and Succession, while he refers (p. 81) to section 37, whereby fees of conquest are to descend as if they were fees of heritage, in treating of courtesy a little later (p. 96), states the law to be that courtesy is not due from conquest. Mr Cameron also so states the law—Intestate Succession, secs. 236, 264, and 265. So in Bell's Prin. (Guthrie's ed.); Ersk. Prin. (Rankine's ed.); Menzies on Conveyancing (Sturrock's ed.)

Accordingly I shall sustain the second plea-in-law for the defenders and dismiss the conclusions as regards courtesy…

The reclaimer argued—The rules relating to courtesy were artificial, and the distinction between conquest and heritage was recognised to rest upon no logical basis— Watts v. Wilkin, 1885, 13 R. 218, 23 S.L.R. 131; Bell's Commentaries, vol i, p. 60. Courtesy was originally designed to enable the widower to keep up the family in the same style in which his wife's money had kept it up, it being considered unreasonable that a father should be deprived of the emoluments of a proprietor by his son—M'Laren on Wills, vol. i, p. 95. It was one of the rules of succession to heritage that it was burdened with courtesy. Other authorities referred to were— Clinton v. Trefusis, 1869, 8 Macph. 370, 7 S.L.R. 200; Bell's Prins., 1038, 1605, 1608; Erskine's Prins. (21st ed.), 239, cp. 562.

The respondents argued—Courtesy was not a liferent but a personal privilege of the father of the deceased wife's heir—Bell's Prins., 1606. The question was, what did the Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94) mean when it destroyed the difference between fees of heritage and fees of conquest. In his Prin., 1037, Bell drew a very definite distinction between fee and the estate of liferent. And courtesy was not even a liferent but a personal privilege. Cases referred to were— Watt v. Wilkin ( cit.); Hodge v. Fraser, 1740, Morison, 3119.

At advising—