Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Mr James Hill, Minister at Kirkpatrick, and Agnes Muirhead, his Spouse,
v.
George Muirhead, Son to the deceased James Muirhead, late Bailie of Drumfreis

Date: 26 January 1709

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Bailie Muirhead having taken an heritable bond for 7500 merks principal, from Sir Robert Grierson of Lag and others, In favours of himself and his assignees whatsoever; and failing of him by decease, to Robert, Samuel, and George Muirheads, his sons, equally and proportionally amongst them, and the lawful heirs of their respective bodies; and failing one of these by decease, without any such heir, to the other two, and the heirs of their bodies; and two of them so failing, to the survivor, and Isobel, Jean, and Agnes Muirheads, the Bailie's daughters, equally and proportionally, their heirs and assignees whatsoever: After the death of the father, and Robert and Samuel, who died before him without children, Agnes Muirhead and her husband pursued Sir Robert Grierson for payment of a fourth part of the sums in the bond.

Compearance was made for George Muirhead, who alleged, that by the decease of the brother, who died first, he came to have right to the half of the bond: so that afterwards upon the other brother's death, the substitution in favours of him and his sisters could only extend to the defunct's half, whereof Agnes could claim only a fourth part. It is not to be supposed that the father, who provided a third share to George, in case his two brothers had lived, designed to restrict his portion after their death in favours of the daughters; who were only brought in with him, upon such an event, in the last place: and no substitution can exceed the share of the institute to whom the substitution is made. 2. George must at least have as much as all the sisters; because he is put in one sentence by himself, and the three sisters are contained in a separate sentence, and so are to share but as one person, Arg. § 6. Instit. de Hæred. Instit. Vinnius ibid.

Answered for the pursuers,—1. We are not to inquire into the father's design, where his words are clear, that the money should be divided equally betwixt the surviving son and his three daughters; and the father had the free disposal of his own without rendering a reason for his destination. And albeit George might have pretended right to the half of the brother's portion who died first, had he survived the father, and thereby established the fee in his person: the father, who was fiar of the money, having survived the two sons, George and his sisters must be considered simply as joint successors to their father. 2. George and his sisters are all conjoined in one sentence of substitution, without any other distinction except that of male and female.

The Lords found, that Robert and Samuel Muirheads, two of the substitutes in the bond, having died before James Muirhead, the father, who was fiar; the sums contained in the said bond fell to George Muirhead, the surviving son, and his three sisters equally and proportionally; and that the pursuer, one of these sisters, had right to an equal fourth part thereof.

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