United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1724) Robertson 493

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 111.

James Hamilton of Dalzell, Esq; Appellant Ex parte

v.

James Hamilton brother to William Hamilton, of Orbiestoun, deceased, and the creditors of the said William Hamilton, and James his Son, Respondents

18th April 1724.

Subject_Service of heirs. —

An estate being disponed to a father and sailing him to his eldest son, and the heirs male of his body, with other subsitutions; and the eldest son having survived the father was infeft thereon, and died afterwards without serving heir to him: the Court found the right to the estate not fully vested in the son without a service, but the judgment is reversed upon appeal.

Subject_Death-bed. —

The Court having found that death-bed could be pleaded by an heir cut off by two prior deeds, and by creditors, the judgment is reversed.

Did, contracting the sickness at the time of executing the deed, constitute death-beds?

Subject_Fiar absolute limited. —

A father grants an absolute dispsition to his son, which is not completed by infeftment or by making up schedules in term, thereof the son afterwards joins with the father in making two new settlements of the estate, and the father who still continued in possession grants and position to a third party, after the son's death; the Court having found these posterior dispositions were not of prejudice to the son's creditors, the judgment is reversed.

Sir John Hamilton of Orbiestoun, deceased, having granted several bonds for sums of money, greater than the value of his estate, to a Mr. Walkinshaw, in 1653, this Walkinshaw obtained decrees of apprising of the said estate; and having thereupon taken out a charter from the then Duchess of Hamilton, the superior, he was duly infeft in the premises, in 1659.

This Walkinshaw afterwards disponed the said apprising, and all hit right to the premises to Sir James Hamilton, son of the said Sir John; whom sailing to William his eldest son, and the heirs male of his body; whom sailing to James Hamilton (the respondent) second son of the said Sir James, and the heirs male of his body; whom sailing to the other persons therein mentioned. Under this disposition Sir James enjoyed the estate during his life; and, after his death, William his son entered thereto, and took infeftment upon Walkinshaw's disposition.

In 1699, William Hamilton made a voluntary settlement of his estate in favour of James his son, but he still continued in possession, and afterwards sold a considerable part of his estate for payment of debts by him contracted. In 1704, a contract was executed at Cramond, between William the father and James his son, whereby William the father agreed to settle the estate upon James the son, and the heirs male of his body; whom sailing upon the heirs male of the body of the respondent James; whom sailing upon the appellant, and the heirs male of his body, with several other substitutions of heirs; and this deed they agreed should be drawn and executed at the sight of Lord Whitelaw.

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No deed was executed in terms of this contract; but in February 1708, William the father and James his son made a new entail or settlement of the estate, executed at Buoy of the Nore, whereby sailing heirs male of their own bodies, they disponed the same to Sir David Hamilton, (since deceased), and the heirs male of his body; with several other substitutions of heirs. In this deed, the respondent James, and the heirs of his body, were not only passed over, but it contained a clause, that if the said Sir David Hamilton, or any of the heirs of entail, should ever convey any part of the premises to the respondent James, or his heirs, the same should be a forfeiture of the right of such persons; and this deed contained a power of revocation.

The said settlements executed by the father and son were all gratuitous, and none of them was followed with sasine, or put upon record. And James the son having died without heirs of his body, William the father on the 26th of December 1711, disponed his lands of Orbiestoun, and others to the appellant; upon this disposition the appellant was infeft; on the same 26th of December, William the father conveyed to the appellant several debts due to him by the Lord Sempill. This William Hamilton died on the 29th of January 1712.

After his death the respondent James his brother, and heir at law, applied to be served heir of provision to Sir James Hamilton their father, passing by William the brother, in order to avoid all his acts and deeds. The ground of his claim was, that under the disposition by Walkinshaw, Sir James was vested in the fee of the estate; and William his ion having neglected to serve heir to him, the respondent, who was the next substitute in Walkinshaw's disposition, was entitled to take up the succession by a service to his father. The appellant opposed this service, and the Court of Session having appointed two of their number to be assessors to the macers, the appellant contended before them, that the title whereby the said estate was possessed, was the disposition from Walkinshaw, in which Sir James Hamilton was merely life-renter, and his son William fiar; and therefore that William the son had a right to take the estate without serving heir to Sir James, to whom he was nominatim substitute in the deed. On the 29th of January 1713, the Court of Session “found that James Hamilton, the respondent, might serve heir in general to William his brother, Sir James his father, and Sir John his grandfather, notwithstanding of the dispositions to the appellant; and that he might serve heir in special to William his brother, Sir James his father, and Sir James his grand-father, in any other lands not contained in the said charter of apprising and sasine thereon.” To this interlocutor, the Court adhered on the 25th of February thereafter.

The respondent was afterwards served heir of provision to Sir James his father, in the lands contained in the said charter; and the retour being opposed by the appellant, the Court on the 22d of January 1714, “allowed the service as claimed to be retoured with this provision that, before retouring, the respondent James Hamilton should give an obligation subjecting himself to the

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lawful debts and deeds of the said William his brother, as heir cum beneficio inventarij to the said William.”

Upon the application of several of the creditors of William Hamilton, the Court on the 11th of February 1714, “remitted it to the Lord Fountainhall to hear parties on this point, viz. Whether or not the estate disponed by Walkinshaw was after the decease of Sir James Hamilton, fully vested and settled in the person of the deceased William Hamilton, without the necessity of a service, and if the said William was fiar, or if the said estate, or any part thereof was in bæreditate jacente of the said Sir James Hamilton.” Parties were accordingly heard on this point, and after a report to the Court, their lordships on the 10th of June 1714, “found that the estate disponed by Walkinshaw was not after the decease of Sir James Hamilton, fully vested and settled in the person of the deceased William Hamilton without the necessity of a service; and therefore allowed the service to be retoured, in terms of the interlocutor of the 22d of January last.”

Pending this question, the respondent James, and several creditors of the said William Hamilton, brought their action of reduction of the two deeds executed by William in favour of the appellant, on the ground that they were in fraud of creditors, and executed not only when the grantor was in the eye of the law, a bankrupt, but when he was on death-bed. The appellant agreed that the creditors of William the father should be preferred, so far as they were truly creditors, but he insisted that the said conveyances could not be reduced as granted on death-bed at the suit of creditors, that being an action only competent to the heir; and that the heir in this case was cut off by two prior settlements made long before these in question. The Lord Ordinary on the 28th of January 1713, “found that the reason of reduction, that the said writs were granted by the said William Hamilton on deathbed, at least after contracting the sickness of which he died, without going to kirk, or market, or living 60 days after, relevant to be proved: and also that the same were granted by the said William Hamilton, when he was bankrupt and insolvent and under diligence by horning and caption, and had retired, absconded or forceably defended himself, relevant to be proved;” and a time was limited for bringing such proof. To this interlocutor, the Court adhered on the 12th of February thereafter.

Upon the application of the appellant, diligence was granted for recovery of the settlement made of the premises in 1708, upon Sir David Hamilton. Several witnesses having been examined the cause was set down for hearing; but before the same came on the creditors of James the son, applied to the Court for liberty to concur with the creditors of William the father in the action, which was allowed. The cause coming to be argued the appellant contended that by the deed 1708, the respondent James, as heir at law, was expressly excluded, as well as by the contract at Cramond, in 1704. On the other hand the respondent James contended, that he was not excluded by the last settlement, but if he was, it was

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jus tertij to the appellant, who could claim no right by that settlement. The appellant in reply, contended that the power of revocation was to be by the father and son, if both alive, yet upon the death of the son, that such power survived to the father; and that the appellant being in possession, it was sufficient for him to shew, that the title was not in the respondent; but that the appellant had an immediate interest, he being next substituted by the deed at Cramond to the heirs male of the respondent's body, who were excluded by the subsequent settlement; and that therefore the estate descended to him. The Lord Ordinary on the 12th of July 1715, “found that by the contract dated at Cramond, the estate of Orbiestoun was entailed to James the son, with power to the said James, with consent of his father to alter, and that in virtue thereof the said contract was altered by a subsequent entail dated at Buoy of the Nore, and found that the father had no power to alter the said second entail by himself alone, and found that the respondent James, the right heir and the descendants of his body are not excluded from the succession by the clause in the said second entail. And in regard the appellant has no right or title by the second entail, preferable to the respondent James, that it is jus tertij to him so found thereon; and that it was competent to the respondents, the creditors to quarrel the dispositions granted by William the father, to the appellant upon the head of death-bed.” And to this interlocutor of the Lord Ordinary, the Court adhered on the 15th of June 1716.

After advising the proof of the alleged death-bed, the Court on the 7th of July 1716, “found it proved that William the father contracted the sickness whereof he died, at the time of granting the two dispositions to the appellant, and that he went not to kirk, or market, after granting thereof.” On the 17th of November thereafter, the Court “found the qualification alleged on the act of Parliament 1696, not relevant to reduce the disposition, except in so far as the same may be made use of for the payment or security of debts anterior to the said disposition.”

The respondents, the creditors of James the son, insisted that the dispositions to the appellant might be reduced in regard they were granted by the father, after he was divested by a conveyance made to his son in 1699. The appellant insisted that this disposition was varied by the articles at Cramond, and that the father still continued in possession and afterwards sold part of the estate. But the Court upon the 22d of December 1716, “found that the minutes of contract entered into at Cramond did not innovate the former disposition granted by the said William the father to his son, in so far as concerns the lands of Orbiestoun, in prejudice of the son's creditors.”

Entered, 15 Jan. 1723–4.

The appeal was brought from “several interlocutors of the Lords of Session, of the 28th and 29th of January, the 12th and 25th of February 1713, the 22d of January, 11th of February and 10th of June, 1714, the 21st of January, 11th of February, and 12th of July 1715, the 15th of June, 7th of July, and 22d and

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26th of December 1716, and 3d and 10th of January next following ^(a).”

Heads of the Appellant's Argument.

Stair B. 3. Tit. 4. § 33.

The estate in question being conveyed by Mr. Walkinshaw to Sir James Hamilton, and after his decease to William his eldest son, and the heirs male of his body, Sir James was only life-renter, and William fiar; consequently there was no occasion for William to serve heir to Sir James. For this the authority of Lord Stair is express: “if heritage (says he) should be granted for example to John, and after his decease to William, and his heirs, John would be thereby naked life renter, and William fiar, who could not be served as heir to John.”

Supposing Sir James had been fiar, yet William being nominatim substitute to him, he upon Sir James's death, became seised in fee of the estate, without any necessity of a service: for in that case, mortuus sasit vivum, the conveyance to William nominatim being considered as an immediate conveyance or interest, vested in William, subject and expectant upon the contingency of his father's death only.

William the son entered upon the estate without any service, continued in possession of it for about 40 years as absolute proprietor, sold the greatest part of the estate, and granted heritable securities over it to a considerable value. If a service were necessary, then he had no right, and the sale and heritable securities are void; yet by one of the interlocutors appealed from the estate is subjected to all of them. If the estate is to be subject to William's other deeds, why not to those in favour of the appellant; and if subject to them, by which the estate was conveyed to the appellant, there was no room for the respondent James to serve heir of provision to his father.

If the respondent James had no title to be served heir, he had no right to bring any action for reducing the conveyances made to the appellant, as being granted upon death-bed, that action being only indulged to an heir.

But supposing he were heir, yet this action ought not to have been sustained, because there is no presumption of the grantor's being imposed upon to his prejudice in this case, for the respondent was expressly deprived of the right of succession, not only by the contract in 1704, but by the deed in 1708, in the last of which the giving or conveying any part of the estate to the respondent, is declared a forfeiture upon the person making such conveyance. At all events such action was not competent to creditors.

Though William the father in 1699, made a voluntary settlement of his estate in favour of James the son, subject to his debts in a schedule annexed, and reserving to himself a life-rent of certain lands; yet that was never completed, for the inventory

_________________ Footnote _________________

( a) Some of these interlocutors are not slated in the appeal case.

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of debts was never made up, nor any schedule annexed. The very lands which the father was to life-rent were never filled up, but a blank was left for them; and the father still continued in possession and afterwards sold the greatest part of the estate. Besides that was entirely varied by the agreement between the father and son in 1704; and if the son had any claim by the first conveyance, as it was but a personal right, he could certainly waive that, and the subsequent agreement in 1704, was an actual waiver thereof. All the debts claimed by the creditors of James were contracted after the said agreement of 1704, by which he had waived the former conveyance.

Judgment, 18 April, 1724.

Counsel appearing only for the appellant, they were fully heard, and due consideration had of what was by them offered: and this cause having been formerly set down to be heard ex parte, in default of any answer of the respondents, or any of them, after a peremptory day appointed for that purpose, and the respondents having been after that so far indulged, as to have the cause put off to a further day, with liberty for them to be then heard, and in order thereto to put in their answer to the said appeal, and yet this day not appearing, but deserting their defence and opposition to the said appeal,

It is ordered and adjudged, that the said several interlocutors complained of in the said appeal be reversed; and it is hereby declared, that it is the opinion of this House that the said William Hamilton, elder brother of James Hamilton the respondent, was in virtue of the disposition from Walkinshaw, in the pleadings mentioned, fully vested in the fee and property of the estate of Orbiestoun, without the necessity of serving heir to Sir James Hamilton, his father. And that the two dispositions by the said William Hamilton the 26th Day of December 1711, in the pleadings mentioned, in favour of the appellant were good and effectual deeds, and the same are hereby established, subject to the true and lawful debts of the said William Hamilton.

Counsel: For Appellant, Dun. Forbes. Will. Hamilton.

On the point of the service of heirs, the judgment of the Court of Session, which is here reversed, is stated as an existing case in the Dictionary of Decisions, vol. II. p. 367. Service and Confirmation.

The other points appealed are also of great importance.

1724