United Kingdom House of Lords Decisions

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Cite as: [1767] UKHL 2_Paton_137

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SCOTTISH_HoL_JURY_COURT

Page: 137↓

(1767) 2 Paton 137

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

[M. 5253.]

No. 38.

Mrs. Eupham Hamilton, Widow of Charles Hamilton, Esq., and Bethia and Charlotte Hamilton, their Daughters, Appellants

v.

Archibald Hamilton, Esq. of Rosehall Respondent

House of Lords, 5th April 1767.

Subject_Heir and Executor — Apparency — Rents.—

Held, reversing the judgment of the Court of Session, that the executors, and not the heir of a party who died in possession of an estate on apparency, was entitled to the arrears of rents unuplifted at her death.

The heir to the estate of Rosehall died in apparency, after possession of the estate for some years. She had left arrears of rent in the hands of the tenants, unuplifted by her at the time of her death. In a competition between the heir to the estate and her executors, it was objected to by the heir, that these arrears of rents did not pass to her executors, as she had died uninfeft and in apparency, while the estate

Page: 138↓

remained in hæreditate jacente of her predecessor, to whom she had made up a title. He was therefore entitled to succeed to the estate, as well as to the arrears of rents unuplifted in the tenant's hands, as an accessory part of the estate. To this, it was answered, that Miss Hamilton's apparency arose from the respondent disputing her right to succeed to the estates, which she was found entitled to. That, besides, an heir apparent was entitled, before infeftment, to the rents and profits of the estate, upon which she has entered into possession.

Jan. 14, 1761.

The Court of Session preferred the heir.

Against this judgment an appeal was brought.

After hearing counsel, it was

Ordered and adjudged that the interlocutors complained of be reversed; and it is hereby declared and adjudged, that Mrs. Eupham Hamilton, the executrix of Miss Hamilton, the last apparent heir, is preferable to Mr. Archibald Hamilton the heir, to the rents falling due during the apparency, and remaining unuplifted; and it is hereby further ordered, that the cause be remitted to the Court of Session in Scotland, to proceed therein accordingly.

Counsel: For the Appellant, Ja. Montgomery, C. Yorke.
For the Respondent, H. Dundas, F. Norton.

1767

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