United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Alexander M'Adam, Esq., Apparent Heir of Tailzie and Provision to Quintin M'Adam, Esq. of Craigengillan v. Elizabeth Walker, designing herself Widow of the said Quintin M'Adam, and her Children, and Sir William Cunyng Hame, Bart., and Others, Tutors and Curators to the said Children [1813] UKHL 5_Paton_673 (24 March 1813)
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Cite as: [1813] UKHL 5_Paton_673

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SCOTTISH_HoL_JURY_COURT

Page: 673↓

(1813) 5 Paton 673

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND, FROM 1753 TO 1813.

No. 68

Alexander M'Adam, Esq., Apparent Heir of Tailzie and Provision to Quintin M'Adam, Esq. of Craigengillan, Appellant

v.

Elizabeth Walker, designing herself Widow of the said Quintin M'Adam, and her Children, and Sir William Cunyng Hame, Bart., and Others, Tutors and Curators to the said Children, Respondents

House of Lords, 24th March 1813.

Subject_Recall of Sequestration. —

Circumstances in which a sequestration of real estate was recalled, for which there had been a competition.

John M'Adam executed a strict entail of his estate of Craigengillan in favour of his own children; whom failing, upon the appellant, his nephew.

It was alleged by the appellant, that Quintin M'Adam, the only son of John, succeeded in 1789, and made up titles under the entail, and, in virtue thereof, possessed the estate until the 22d March 1802, when he put an end to his own existence, by discharging a pistol into his mouth.

The appellant further alleged that he was never married, but that he had natural children, by different country girls, and two of these children were resident in his mansion house of Barbeth, with their mother, at the time of his death. That this lady, Elizabeth Walker, insisted upon keeping possession, upon the pretence that Mr. M'Adam, on the very day when he shot himself, and within an hour or two of his committing the act, had made a declaration, in presence of some of his servants, that he was married to Elizabeth Walker, whereby, it was said, her children were legitimated.

In these circumstances, the appellant, who was the nominatim heir apparent of tailzie, proceeded to assume possession in that character; but being opposed by Elizabeth Walker, he presented a petition to the Sheriff of the county in which the mansion house was, praying for instant delivery of the keys of the charter chest, and other repositories, and to decern them to lodge the same in the hands of the clerk of Court, and praying to decern Mrs. Walker to remove from the mansion house. The Sheriff allowed inventories to be taken. Of this judgment the tutors brought an advocation, and the Court found (8th June) neither party entitled

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to the possession of the entailed estates or the title deeds. The appellant also brought an advocation, but it was refused, of same date.

July 1805.

In the meantime, a competition of brieves was going on before the Macers, between the appellant and Catherine M'Adam, eldest daughter of the said Quintin M'Adam. In these brieves the Lords sisted proceedings “till a decreet of declarator is produced, ascertaining the legitimacy or illegitimacy of the claimant, Catherine M'Adam.”

July 11, —

The appellant then applied by petition to the Court of Session to sequestrate the estate, and this interlocutor was pronounced:

“The Lords having advised this petition, they sequestrate the whole entailed estate of Craigengillan, and appoint Mr. Crawford Tait, writer to the Signet, to be judicial factor thereon, with the usual powers, he finding caution before extract.”

The declarator of marriage and legitimacy was proceeding in the Court, and, on 16th April 1806, was decided in favour of Elizabeth Walker, in the Commissary Court, and on 13th Nov. 1806 and 4th March 1807, in the Court of Session.

Mar. 11, 1807

Mrs. Elizabeth Walker had given birth to a son after the death of Mr. M'Adam, and tutors and curators having been appointed to the son (Quintin), a petition was presented to the Court to recall the sequestration of the entailed estate, and to find that the tutors and curators for Quintin M'Adam are entitled to possession of the same. After answers were lodged to this petition, the Court pronounced this interlocutor:

“Recall the sequestration of the entailed estate of Craigengillan and appointment of the judicial factor thereon, and find the petitioners, as tutors for Quintin M'Adam, are entitled to possession.”

Against this interlocutor the present appeal was brought, chiefly grounded on the allegation that it was premature, pending an appeal to the House of Lords, to recall the sequestration, and to find the respondents entitled to possession of the estate. The answer made to this was, that the sequestration was awarded before any evidence of the legitimacy of Mr. M'Adam's children had been led; but now that this evidence had been taken, and had been held to be conclusive in establishing the legitimacy, the Court were entitled to act upon that evidence and upon the whole circumstances.

After hearing counsel, it was

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Ordered and adjudged that the interlocutor complained of be, and the same is hereby affirmed.

Counsel: For the Appellant, Henry Erskine, John Clerk.
For the Respondents, Sir Sam. Romilly, Ad. Rolland, Geo. Cranstoun, Tho. Thomson.

1813