United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1719) Robertson 221

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 50.

William Ayton Esq; Appellant

v.

Dame Margaret Colvill, Widow of Sir John Ayton of Ayton, and Robert and Andrew Ayton their Sons, Respondents

23d Feb. 1718– 1719.

Subject_Representation.—

Fountainhall, 23 Feb. 1706. 18 July 1710. Dalrymple, 27 Nov. 1716.

An eldest son of a marriage is retoured legitimus et propinquior bæres to his father cum beneficio inventarii. In the inventory he gives up not only the lands settled upon him in his mother's contract of marriage, but also certain other lands; and afterwards brings a reduction of the provisions in a second contract of marriage, alleging, that he was only heir of provision in virtue of his mother's contract of marriage, and as such might still quarrel his father's deeds, the narrative of the retour designing him heir procreated between a certain man and woman; it is found, that he was served heir of lint to his father, and as such could not quarrel any of his father's deeds.

By contract of marriage in 1670, between Sir John Ayton, the appellant's father, and Mrs. Magdalen Stewart, daughter of Sir William Stewart of Invernity, the appellant's mother, Sir John Ayton the grandfather, obliged himself to resign and surrender his estate of Ayton, and certain other lands, in favour of Sir John his son, and the heirs male to be procreated betwixt him and the said Mrs. Magdalen Stewart, whom failing to his heirs male of any other marriage, whom failing to his heirs, and assignees whatsoever, reserving a life-rent of part of the estate to the grandfather and his lady. In terms of this contract crown charter was obtained, and infeftment taken by the appellant's father in 1671: and in 1672 that charter and instrument of sasine were ratified and confirmed in Parliament. In 1684. the appellant's mother died, leaving him the only child of that marriage.

In 1701, Sir John the appellant's father, married the respondent Dame Margaret sister of the Lord Colville his second wife. By the contract upon that marriage, Sir john provided the said Dame Margaret in the life-rent of one half of the estate settled upon the heirs of the first marriage, and also in the life-rent of one half of the estate of Kincraigie, (not contained in his first contract of marriage); and he settled the fee of that estate of Kincraigie, to the children to be begotten of the second marriage; and further bound himself and his heirs to pay to the said children the sum of 2222 l. 4 s. 5 d. sterling, with interest after they arrived at the age of seven years. Thereafter Sir John conveyed to his children, the respondents Robert and Andrew Ayton, the sum of 1333 l. 6 s. 8 d. sterling, of personal estate; and left his debts to be paid by the appellant. The appellant states, that these debts amounted to 4000 l. sterling; and that the yearly income of the estate descending to him did not exceed 300 l., of one half whereof the respondent Dame Margaret was to enjoy the life-rent.

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Sir John the father died in 1703; and after his death the appellant was served heir in special to him cum beneficio inventarii in the lands and barony of Ayton. The words of the service were “Qui jurati dicunt, quod quondam Dominus Joannes Ayton de eodem, pater Magistri Gulielmi Ayton nunc de eodem procreat inter illum et Magdalenam Stewart, ejus primam Sponsam, latoris præsentium obijt ultimo vestit. et sasit. &c. et quod dict. Magister Gulielmus Ayton eft legitimus et propinquior hæres dict. demortui Joannis Ayton sui patris de omnibus et fingulis prædict. terris, &c. cum beneficio Inventarij secundum actum Parliament, &c.” In the inventory given up by the appellant, after the service, he not only specified the lands contained in the first contract of marriage, but also the estate of Kincraigie and lands only mentioned in the 2d marriage contract. In 1705, the appellant brought his action of reduction, improbation and declarator before the Court of Session against the respondents, for setting aside the grants and provisions made by his father in favour of the lady and children of the second marriage, as exorbitant, and as being done, to the prejudice of the first marriage settlement, and of the appellant as heir of the first marriage.

The respondents made defences, that whatever the provisions in their favour were the appellant could not question them, because he was served heir general to his father, and thereby so represented him that he could not call in question any deeds done by him.

The Court on the 18th of July, 1710, “Found that the appellant was served heir of line to his father, and remitted to the Lord Ordinary to proceed accordingly.” The appellant reclaimed against this interlocutor, and after sundry proceedings, the Court on the 11th of July 1716, “Found that the appellant was served heir of line to his father, and that as such he could not quarrel any of his father's deeds and assoilzied the respondents.”

Entered, 17 Jan. 1717–18.

The appeal was brought from “two interlocutory sentences and decrees of the Lords of Session of the 18th of July 1710, and 11th of July 1716.”

Heads of the Appellant's Argument.

The estate the appellant claims was settled upon him both by his father and grandfather in his mother's marriage settlement, which was completed by charter and sasine, and could not be voided by any gratuitous deed of his father.

The provisions given by the appellant's father to his second wife and her children were very exorbitant, being far beyond what his circumstances could bear; and the respondents enjoy an opulent fortune, whereas the appellant has not broad, but by the favour of his father's and grandfather's creditors, from whom he has a small allowance yearly, until the event of this appeal be known.

An heir served in special to a certain estate whereof his predecessor died possessed, and whereof the succession was provided to

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him by a marriage settlement or other deed, is to be understood heir of provision and not heir general; and therefore not liable for deeds done to the prejudice of the heir of provision; and the appellant's service pointed him out heir of provision upon his mother's marriage settlement as being William Ayton, now of Ayton, and the son of Sir John Ayton by Magdalen Stewart his first wife.

The respondents contended, that by the Words legitimus et propinquior bæres the appellant was served heir general, and so liable universally to all his father's debts and deeds. But all briefs directed forth of the Chancery in Scotland, to warrant the inquest to serve heirs, are formed in general and uniform terms without making any distinction what fort of heir is to be served, or upon what title the service is to proceed, and the return of the inquest answers the propositions of the brief regularly, and in like general terms. The additions of the return of the inquest, viz. Hares provisionis vel Talliæ, are only of late used though required by no law, it does not follow therefore that every heir serving as legitimus et propinquior bæres is heir general, because that distinction must appear from the heir's claim, or from the title of his predecessor, and not from the modern additions in the retour of the inquest. The words legitimus et propinquior bæres must be understood secundum subjectam materiam, viz. If of an heir of entail it is understood bæres secundum talliam; if of an heir of provision, by a contract or marriage-settlement, it is understood bæres provisionis virtute contractus matrimonialis. And although the words bæres provisionis be not added to the retour of the appellant's service, yet the respondents cannot thence conclude, that he is not heir of provision, or that he is liable to all his father's deeds as heir general; for it is certain that the only title Sir John, his father, had to his estate, was the surrender thereof made to him by Sir John the grandfather in his marriage-settlement, whereby the fee is provided to the appellant, and therefore his service as heir to his father must be as heir of provision in right of that marriage-settlement. Besides, the appellant knew that he had conveyed his other real and personal estate to the respondents, the children of the second marriage, and that they were possessed of the same, and consequently nothing remained for him to be served heir to, but what was provided to him by the marriage-settlement; so that his service must be circumscribed by the nature of the investiture upon which the inquest made their retour.

If the appellant had been served legitimus et propinquior bæres masculus virtute contractus matrimonialis, then the Court would have retrenched the exorbitant provisions made to the children of the second marriage; and notwithstanding his service was general, wanting the words virtute provisionis &c. that did not alter the case, since where there is a special provision by marriage-settlement, the law is anxious to preserve the first settlement from being voided by any posterior deed, especially a second marriage-settlement. So that it is not so much the person that the law takes notice of, whether he be heir general or not, but the deed that is done in fraud of the first marriage-settlement, and whether

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the party served heir be entitled to the provisions of that settlement. For, here the subtlety of law, that bares est eadem persona cum defuncto must yield to this undoubted principle both of law and equity, that he who has bound himself by a marriage-settlement, which is always onerous as to the heir of the marriage, cannot voluntarily and gratuitously evacuate that first settlement; and it is certain, that so far as provisions in a second marriage-settlement are exorbitant they are gratuitous; and there were several precedents of the Lords of Session in the like case. It is not to be imagined that the appellant would make up a title, in order to give up to the children of the second marriage the provisions made by his grandfather in his favours, by his mother's mariage-settlement; and though by that settlement he was entitled to the estate, yet it was necessary for him to be served heir before he could call in question such deeds as were done by his father, tending to disappoint his succession, but that service gave him no further title to the estate than he had formerly.

1695, C, 24.

The respondents contended, that it further appeared that he was served heir general, because in the inventory given up by him he had included the lands of Kincraigie, which were not fettled upon him by his mother's marriage-contract, as well as the estate to which he was entitled by that contract. But the giving up inventory to the sheriff of the shire did not alter the nature of the service: the claim for the service recited that the appellant was to be served heir cum beneficio inventarii conform to act of parliament 1695, and that act requires no inventory to be made up at the time of the service; but only requires that such inventories, when made up, containing the whole estate of the deceased, should be recorded before the sheriff in the shire where the estate lies; and that they be again recorded in books, appointed by the Court of Session, that creditors may know what estate belonged to their debtor at the time of his death, and that his heir serving cum beneficio inventarii might be no further liable to his debts than the value of the estate in that inventory. The making of such inventory, therefore, could never subject the appellant to the gratuitous debts and deeds of his father; and more especially in the present case, for this reason, that Mr. Colvill, who formed the appellant's claim, and the retour of his service as the sheriff's clerk, and made up the inventory, neglected to order the same to be recorded in the books of Session, whereby the appellant loft the benefit of that law, and made no use of the inventory. And as the appellant had no benefit by giving up inventory of the lands of Kincraigie, it cannot subject him to the gratuitous debts and deeds of his father.

Heads of the Respondents' Argument.

The description of the appellant by his father and mother could not be any evidence that he was only to be served heir, as claiming a particular provision by the marriage-articles for that description was equally proper to a general service as heir of line, and is proper, if not necessary, in all services. Had the intention been

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only to serve the appellant heir of provision by virtue of his mother's marriage-contract, there had been no occasion for mentioning her to be the first wife, because an heir of provision has right to that provision, whether his mother be first or second wife: but since he was to be served heir of line, it was necessary to find, that his mother was the first wife, because other wife he could not have been served heir of line. Though in the recital of the service he is described as son of his father by Magdalen Stewart, his first wife, yet in the service itself and retour of the jury, he is only found legitimus et propinquior hœres, without referring to the marriage-articles or any other provision whatsoever, which could never have been done had the service been as heir of provision as the appellant contends.

Nor does it alter the case, that the infeftment upon the contract of marriage, whereby it appeared that the lands were settled upon the appellant as heir male of the marriage, was produced ; for the appellant being both heir of line and heir of the marriage, he might very well be served heir of line, as he was, whereby, besides his right to the lands provided to him by his mother's marriage-contract, he made a title to all other lands his father died seised of.

It was likewise the appellant's intention to serve himself heir of line; for otherwise he must have confined himself to the lands settled by his mother's marriage contract ; but this he did not, for amongst the lands given up in the inventory, and to which he claimed right to succeed by virtue of this service, are contained the lands of Kincraigie. These were no part of the settled estate; and yet the appellant would now pretend, that he was only served heir of provision, which could never entitle him to those lands of Kincraigie, which were not settled upon him. This is likewise confirmed from this, that the appellant brought an action, as heir to his father to avoid and set aside a conveyance made of these lands to the respondents, the minors, by their father ; but this could not be as heir of provision, for these lands are not contained in the settlement, and consequently he mud have considered himself as heir general or heir of line.

When an heir has made up his right or title as heir of line, he thereby becomes by law universally liable to the payment of all the debts, and performance of all the deeds of the person to whom he is heir. The law never will allow him, after subjecting himself to that universal representation, to avoid any of his predecessor's deeds, especially where they are for valuable considerations, as the demands of the respondents are; being secured by articles before marriage, in consideration thereof and of a marriage-portion paid. And therefore since the appellant's service does give him a right to all his father's real estate, as well as that provided to him by his mother's marriage-contract, the consequence must be, that he mud be as universally liable, as his title gives him an universal right; and therefore he is tied up from questioning the deeds in favour of the respondents made by his father, whom he thus claims under. This has always been the

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uninterrupted opinion of all lawyers, and thus the judges have determined.

Judgment, 23 Feb. 1718–19.

After hearing counsel, It is ordered and adjudged, that the petition and appeal be dismissed, and that the two interlocutors therein complained of be affirmed.

Counsel: For Appellant, Ja. Stuart, Tho. Lutwyche, Hum. Henchman.
For Respondents, Rob. Raymond, Will. Hamilton.

Vide the case Home v. Home, No. 15. of this Collection. One remarkable difference between that case and the present is, that here the son in the inventory, (which nevertheless is said to have had no effect for his benefit) gave up lands which were not settled upon him by his father's contract of marriage. In the case of Home v. Home, there were no lands to succeed to but those contained in the contract of marriage, and settled upon the heir.

1719