Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Matthew Cumming
v.
Margaret Scot and John Muir

Date: 24 December 1701

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I Reported the competition about the estate of Mr John Kincaid of Corse-basket, advocate, betwixt Matthew Cumming and Margaret Scot, his sister's children, and his nearest of kin. John Baillie of Park, heritor of the lands of Corsebasket, makes a tailyie of these lands in 1659, to himself and the heirs of his own body; whilk failing, to John Kincaid his nephew, and the heirs of his body; then to Francis Kincaid and his heirs; and, last of all, to Margaret Kincaid their sister, and the heirs of her body. After Baillie's decease, John Kincaid does not prosecute the tailyie, but charges Baillie's sisters, as heirs of line, to enter heir to him in the said lands of Corsebasket; which they accordingly did, and disponed to him these lands, but exactly in the terms of their brother's tailyie, whereupon John is infeft; but afterwards resolving to change the holding, he resigns in the hands of the Duchess of Hamilton, superior, and prevails with her Grace to get them changed from ward to feu; and in this charter the tailyie is neglected, and the lands taken to himself and the heirs of his own body; which failing, to his brother Francis, and the heirs of his body; and these also failing, the fee to return to himself, and his own heirs whatsomever; and on this he is also infeft. On John Kincaid's decease, in June 1700, Matthew Cumming, eldest son to Margaret Kincaid, the last branch and member of the tailyie made by John Baillie, serves himself heir of provision and tailyie to the said John Baillie, and thereon infefts himself as hœres ex asse in the whole lands: Margaret Scot, a niece of John Kincaid's by another sister, retours herself heir-portioner to her uncle, and, being also infeft, pursues for the half of the maills and the duties of the lands. In which process Matthew Cumming compears, and claims the whole, and repeats a reduction he had raised of the disposition made by Baillie's sisters to John Kincaid, upon the Act of Parliament 1621, as done inter conjunctas personas, without one onerous cause, to the prejudice of him, a lawful creditor as heir of tailyie.

Answered,—Heirs of a marriage have been sustained as creditors to quarrel any subsequent provisions in posterior contracts of marriage; but an heir of tailyie, who has only nudam spem succedendi, and only a mere destination, can never be reputed such a creditor as is meant by the Act of Parliament 1621.

The Lords repelled this reason of reduction, and found, though the sister's disposition was not relative to, nor in express implement of Baillie's tailyie, yet it was a material implement in so far as it ran in the same channel, and was to the same individual and specific members of tailyie nominated by Baillie; and so, being neither an innovation nor alteration thereof, he could not reduce it, because it was not a deed prejudicial to the tailyie.

Then Margaret Scot, and James Muir her husband, founding on the posterior infeftment taken by Mr John, upon his own resignation to himself et hœredibus suis quibuscunque, as a plain revocation and alteration of the tailyie:

It was answered for Matthew,—That nihil aliud agebatur by this new infeftment but allenarly to change the holding, and non apparet that he designed to alter or invert the succession fixed by Baillie his uncle; and “heirs whatsoever” must be understood here in sano sensu et in terminis juris, that he meant the heirs of his former infeftments: even as if a bond of corroboration or an eik of reversion be taken to different heirs from those contained in the principal bond or wadset; yet the heirs of the first writ over-rule the accessory, and interprets the parties' meaning to have been uniform, and not to have put his several heirs by the ears, by leaving one of his rights to the heirs of line, and the other to the heirs of tailyie: And thus the Lords have oft found; and see a parallel case in President Craigmillar's Decisions, January 1665, Scot against Scot.

Answered,—The analogy of law may require that construction between principal and accessory rights; because accessorium sequitur suum principale, et surrogatum sapit naturam ejus in cujus locum surrogatum; but that a resignation in favour of himself, and his heirs whatsomever, must be strained to be the heirs of his former infeftment, where he has not said so, was an unaccountable interpretation, and supported by no topic in law.

Then Matthew, for clearing what was the deceased John Kincaid's meaning and design as to his succession, founded on a letter writ by him to Matthew's wife before the marriage, wherein he assures her that Matthew had the surest claim to his little fortune after his death: and that such letters, in treaties of marriage, are effectual and obligatory, appears by the decision, 10th July 1672, Shaw quibuscunque against Bruce of Clackmannan; where a like letter was only repelled, because it was a conditional offer, and the conditions annexed never fulfilled. 2do. Mr John, by his latter-will and testament, nominates Matthew his heir and successor in his lands, and leaves this Margaret Scot a legacy of 4000 merks; and in case she controverts Matthew's title, then her legacy to be void: all which speak his enixa voluntas.

Answered for Scot and Muir,—That parties' intentions are to be scanned by what is done, and not by a propostimi in mente retentum; but here the tailyie is actually altered; ergo it was intended; and this cause cannot be shored up by such weak props, for the letter is only a compliment et verba officiosa; and his testament cannot convey a fur of land, which Mr John, as a lawyer, knew very well; and whatever he intended, non fecit id quod potuit; and the tailyie being broken, these indications and conjectures of his will, however favourable to Matthew, can never make the tailyie reconvalesce.

The Lords thought there were presumptions enough that Mr John designed Matthew Cumming to be his heir, but he had not done it in the habile way; for if his last infeftment had borne, that, failing heirs of his own body, then to the heirs contained in his former infeftments, that would have kept the tailyie in being; but being conceived simply to return to himself, and his heirs whatsoever, that could admit no other construction but that the tailyie was innovated and passed from. And some of the Lords observed, that, next to his own heirs to be procreated of his body, he brought in his brother Francis and his heirs, which evidences that he had the tailyie then in his view; for he expressly assumes Francis one of the members of it, and pretermits the rest. And therefore the Lords repelled Matthew's grounds, whereby he craved preference to the whole; and found the said Margaret, as heir-portioner, had right to the half.

Vol. II. Page 132.