Answers 1766

A N S W E R S F O R « Poor P ora and P ornordH P urroas b and ANSWE P oifBd b Husband to the said Mar~- garet, for his Interest; T O T H E P E T I T IO N of e l.T Earl of Breadlbn. • st * T HESE pursuers, as heirs apparent to the ancientproprietors of Shian, are now insisting in the preparatory steps for attempting to recover, by a formal action before your Lordships, the estate of their ancestors, which has been long with-held from them by the noble petitioner. Archibald Menzies, the last person of the family of Shian who possest the estate, having unfortunately engaged in the last rebellion, is supposed to have been killed at the battle of Culloden, no accounts having been ever heard of him after that period.— By this misfortune, the estate being left for a little time without a proprietor, it happened, as might naturally be expected, that the papers belonging to it were intirely dispersed, and the greatest part of them, there is reason to believe, are at present in the hands of the Earl of Breadalbane, who having led an adjudication against the estate of Shian, for payment of certain annuities due to the relict of a former proprietor, to which he had acquired right, by ways and means that shall hereafter be more par­ ticularly explained, took this opportunity of seizing the possession, and has continued to maintain himself in it e- ver since. The ‘ u RWFOWS«Wt ohe sh,,e / The pursuers, who are the undoubted lineal heirs o f this unfortunate family, before attempting to raise any reduc- tion of the Earl’s right, which could not be done without making up a proper title, were advised to bring an action of exhibition ad deliberandum, as heirs apparent, in the u- fual form, that, upon examining the several deeds and wri- tings granted to or by their predecessors, they might be enabled to judge, whether it would be most adviseable for them to take up the s uccesio n, or to abandon it in- tirely. The Earl of Breadlbn, who is called as a defender in this exhibition, and who is the person principally pointed at, has made a partial prodcution of the writings in his custody; by which he maintains, that the proprietors of Shian have been fully denuded of the estate in his favours, and that, therefore, the pursuers have no title to demand any further exhibition. Lord Gardenstoun has found by repeated interlocutors, that the production made by the Earl is not sufficient to exclude the pursuers from going on in the exhibition in common form. Against these interlocutors a reclaiming petition having been presented by his Lordship, it will be necessary, upon the part of the respondents, to date, as briefly as possible the progress of the estate of Shian for some years back­ wards, from which it will appear, in what manner they are intitled to take up the succession, and how little the Earl is vested with any right of property sufficient to ex­ clude them. James Menzies, the last undoubted proprietor of Shian, having no heirs of his own body, the two persons nearest to his succesio n, were Alexander Murray grandfather to the respondents, and Janet Murray, both children of Shian's sister- Janet Murray was married to one Alexander Men- zies in Buchanty. ' J a m e s Menzies, of this date, executed a bond of • tailzie, whereby he devised the succesio n, failing heirs of his his own body, first, to the heirs male of the body of "Ja­ net Murray and Alexander Menzies above named, and failing them, to his own nearest heirs and assignies whatsoever. Altho’ this bond of tailzie was recorded, it was allowed to remain in the state of a personal right, and no step was ever taken towards compleating it by insestment. Sometime thereafter, James Menzies having intermarried with Helen Graeme, sister to Mungo Graeme of Gorthie, in his contract of marriage, he made a new settlement of his e- state of Shian, in the following terms:— “ And also, the said James Menzies binds and obliges him and his above- written, to insest and seize himself, and the aires mail, lawfully to be procreate of the said marriage betwixt him and the said Helen Graham, whilk failzeing, the aires mail to be procreate of his own body, of any other law­ ful marriage; whilk failzeing, the aires famel, without division, to be procreat betwixt him and the said Helen Graham, in fee, heritably and irredeemably, with and under the provisions, reservations, conditions and re- strictions after mentioned; which also failzeing, his own nearest and lawful aires and assignees whatsoever, with and under the provisions, conditions, and reservations also after-mentioned.” By this contract, the former deed of tailzie is virtually revoked, and a different line of succession is estab lished, al­ tho’ there be no clause expresly altering or revoking the tailzie.— By the tailzie, the heirs male of Janet Murray are called immediately after the defendants of the tailzier's own body.— But by the contract o f marriage, the heirs of line are called immediately after the issue of that or of any subsequent marriage. James Menzies died without ever having any issue of his own body. Upon his death, therefore, there appears to have been some contest with regard to his succession. Alexander Mur­ ray, grandfather to the pursuers, claimed upon the contract o f marriage, as nearest and lawful heir to the deceast James Menzies, Menzies, and, of course, by that contract, called immedi­ ately to the succesion, failing heirs of his own body. James Menzies, the eldest son of Janet Murray and Alex­ ander Menzies, founded his claim upon the tailzie, as be­ ing thereby called, to the succession, in preference to the • heir of line. Altho’ the claim advanced upon the tailzie was evident-- ly ill founded, seeing the tailzie contained an express pow- e r to revoke and alter, and had been in effect actually re­ voked and altered in many particulars by the contract of marriage, which was a posterior settlement; nevertheless, James MenziesTbeing powerfully supported by the family of Breadalbane, who were superiors of a great part of the lands, found means to attain possession, and omitted no opportunity to strengthen his pretensions, and secure the estate to himself. With this view, he entered into a transaction with-Alexandr Murray his competitor, the result of which was, that • Alexander Murray conveyed his right to Captain Menzies of Comrie, as trustee for James Menzies; and many years there­ after, Captain Menzies, imagining that he had made up a proper title to the. lands ot Shian, upon the conveyance from Alexander Murray, of this date, in implement of his trust, disponed the lands of Shian to Archibald Menzies, younger brother to James Menzies, James himself having by this time deceased. In this deed, the lands are dispo­ ned by Captain Menzies “ to Archibald Menzies, and the heirs whomsoever of his body, whom fa iling, to the other heirs of tailzie mentioned in James Menzies's deed of entail above mentioned." James Menzies likewise, s t ill dreading the invalidity of his title, sometime before his death, took the precaution to obtain a conveyance from one William Menzies, who was heir male upon the footing of the ancient inve- stitures. In this manner, Archibald Menzies continued to possess the said lands of Shian till the time of his death, which is supposed supposed to have happened in 1745e as has been already mentioned. The Earl of Breadalbane having before acquired a right to sundry incumbrances affecting the estate of Shian, he immediately upon this led an adjudication for the whole, amounting to a very large sum, and assumed possesio n of the lands, to the exclusion of all the natural heirs of the unfortunate family of: Shian. From this short deduction of the different rights and ti­ tles of this estate, your Lordships will observe, that the respondents, who are grand-daughters to Alexander, nephew and heir of line to James Menzies o f Shian, are in- titled to take up the succesio n in two different ways: 1mo, They are heirs apparent upon the contract of marriage 1692, whereby, failing heirs o f James Menzies's own bo­ dy, the lands of Shian were devised to his nearest and law­ ful heirs whatsoever. 2do, They are also heirs apparent upon the footing of the bond of tailzie executed in 1691. — The destination in the tailzie, failing heirs of the tail— zier's body, is, first, to the heirs male of the body of Alexander Menzies and Janet Murray, and, failing them, to his own nearest heirs and asign ies whatsoever. As the first member of this destination has already failed in the person of the late Archibald Menzies of Shian, who was the said male defendant of the bodies of Alexander Menzies and Janet Murray; of course, the respondents, who are un- questionably heirs o f line to James Menzies the tailzier, are intitled to come in upon the last substitution of the tailzie. In either of these views, therefore, they are truly heirs ap­ parent, intitled to succeed to the estate of Shian by fer- vice to some of their predecessors; and, as such, are intitled to demand exhibition of all writings relative to these lands, and of all deeds granted to or by these pre­ decessors, from which alone they will be enabled to de­ liberate, whether the succession will prove beneficial to them or not. The respondents, therefore, shall proceed to consider the defences offered by the Earl against his being obliged to " depone depone and exhibit in the usual terms to the respondents, considered as heirs apparent in these two distinct and sepa- rate views, upon the contract of marriage, and upon the deed of tailzie. With regard to the first, viz. The claim founded upon the contract of marriage, the petitioner has endeavoured to show, that that contract does not import a revocation of the antecedent deed of tailzie, and that, by the nearest lawful heirs whatsoever, called to the succession by the con­ tract, immediately after the heirs of the tailzier's own bo­ dy, are to be understood not his heirs of line, but the ' heirs to whom the succession was provided by the tail­ zie: And upon this part of the argument, his Lord- ship has had recourse to, the opinions of some of our lawyers, and has adduced various judgments of this su- preme court. The respondents are under no necessity of combating a great part of the doctrine that is laid down by the petiti­ oner. They do acknowledge, that the term, heirs whatsom- ever, in our law is of a flexible nature, and susceptible of various different significations, according to the circumstan- ces of the case; but it will also be observed, that the term, heirs whatsomever, in its most proper and ordinary accepta- tion, signifies heirs of line, and that whenever a person en- deavours to put upon it a different meaning, it is incum­ bent upon him to show, either from direct evidence, or from strong presumptions, that the person who uses that term, had an idea fixed to it different from its ordinary ac­ ceptation. The case where this method of giving a con- struction to the term heirs whatsomever, has been usually adopted by the court, is where an estate standing devised to a particular series of heirs, the proprietor purchases in some collateral right or incumbrances affecting the same, and takes the conveyance to heirs whatsomever. As it is impossible to presume that it could ever be the proprietors intention, that the collateral right, or incumbrance so ac quired, should be again separated from the succession of the the principal subject, to secure and strengthen which could be the only object of the after-purchase; the term there­ fore of heirs whats omever, must in such cases be understood to be, that particular series of heirs to whom the principal subject itself stands provided. In the present case, neither proof or presumption is offered, to show that James Menzies did not mean by his contract of marriage, to alter the de-* stination of succession appointed by the tailzie, and which he had reserved to himself an express power to alter. f r the contrary it is clear, that even when the future children of the marriage were not at all interested, the destination of succesio n contained in the tailzie was to be broke through.----- If James Menzies, for instance, had married a second time, and left only daughters, the eldest daughter, or her son, would have succeeded to the whole without di- vision, upon the footing of the contract, whereas by the tailzie in this case, the daughters would have all succeeded equally. It is clear, therefore, that as James Menzies never carried the bond of tailzie into execution, so he had no ob­ jection to alter it again as occasion offered. The decisions appealed to by the petitioner, prove no- thing more than what the respondents have already admit­ ted. The first decision mentioned, is that with regard to the estate of Carrolston, determined on 21st July 1725; there Major Skeen having purchased an estate, the disposition whereof was taken in common form, to his heirs whatsom- ever, executed a tailzie thereof in favours of his eldest daughter, excluding the younger: Having afterwards occa- sion to make up a complete title to the property of the e- state, he expede a resignation, and took out a charter to his heirs whatsomever: This was found not to import any re­ vocation of the tailzie, and for this good reason, that it was imposib le for the Major to vest himself in the property of the estate in any other manner, than by resigning and expeding his charter to heirs whatsomever, in the precise terms of the procuratory contained in his disposition. The The decision in the case between the Duke of Hamilton and Earl of Selkirk, 8th January 1740, appears to proceed upon this footing, that the acquisition of the property be­ ing only a subordinate right, must accrue and be consoli- date with the superiority, and must therefore defend to the same series of heirs to whom the superiority had been an- tecedently provided. The cafe of Wygateshaw, is still less applicable than any of the former: In that case, Mr. Steel the disponee, besides insi sting upon the general topick, offered to prove by a number of facts and circumstances, that Wygateshaw, when providing his estate by his contract of marriage, failing heirs of the marriage, to his heirs whatsoever, had no in­ tention to alter the prior disposition made in favours of Mr. Steel: A proof was accordingly allowed, and it was upon the event of this proof in which Mr. Steel had the good for­ tune to succeed, that the decision of the court appears in a great measure to have proceeded. Your Lordships will also attend to this circumstance, which the petitioner seems altogether to have overlooked, that the destination in the clause of the contract of marri­ age formerly recited, is not simply to James Menzies's heirs whatsoever, but to his nearest lawful heirs and assignies what- s oever. The respondents do humbly maintain, that this expression of nearest lawful heir, or legitimus et propinquior haeres, is as precise and determinate, as if it had been ex­ presly said to his heirs of line; and whatever latitude of in­ terpretation may have been given to the term, heirs what- somever, the respondents have been able to discover no one case where your Lordships have found, that this expres­ sion of nearest lawful heir whatsoever could be applicable to any thing else, but the legal heir. The petitioner in the next place argues upon this head, that altho’ the respondents were intitled to serve themselves heirs of provision to the late James Menzies of Shian upon this contract of marriage, yet they must still be cut out by the deed of Alexander Murray, their grandfather, who is said said to have made up a proper title to the provision con­ tained in this contract, and to have conveyed the same to Captain James Menzies of Comrie, as trustee for the late Ar­ chibald Menzis of Shian. The only title which Alexander Murray appears to have made up in his person, is a general service as heir of line legitimus et proinqu haeres to the deceast James Menzies of Shian. The respondents do humbly contend, that this ge­ neral service as heir of line, cannot possibly carry a subject provided to a seres of heirs, in many particulars diffe- rent from the lineal succession, altho’ the claimant hap­ pened at the same time to be heir of provision also. The purpose of a service is twofold; in the first place, to show that the claimant is willing to represent his predecessor in that particular character under which he claims; and, in the second place, to show, that the claimant and no other person is entitled to take up the succession. The general service produced of Alexander Murray, tanquam legitimus et propinquior haeres, fails in both these respects; a person may be willing to represent his predecessor as heir of line, and serve himself accordingly, yet nevertheless be unwilling to represent him as heir o f provisio n: And, in the next place, this service does not instruct that Alexander Murray was the person entitled to take up the lands provided in the contract of marriage. Cases might occur, where a person might be heir of line to James Murray o f Shian, and entitled to serve as such, who yet would not be heir o f pro­ vision in terms of the destination contained in the contract of marriage; a service therefore, as heir of line, can in no shape be considered as sufficient to carry the subjects pro­ vided by that contract. Your Lordships will be further informed, that altho’ the service of Alexander Murray, and the subsequent con­ veyances from him to Captain Menzies, and from Captain Menzies to Archibald Menzies the last proprietor of Shian, are to be held valid and sufficient, yet the benefit of every one of these deeds and conveyances, must now accrue to the C respon- respondents themselves. The disposition from Captain Menzies to the late Shian, whereby he makes over to him the right acquired from Alexander Murray, is taken “ to Ar­ chibald Menzies now of Shian, only lawful son in life to the deceast Alexander Menzies of Shian, procreate betwixt the said Alexander and Janet Murray his spouse, sister’s daughter to the said deceast James Menzies o f Shian, and the heirs lawfully procreate or to be procreate of his bo­ dy; whilks failing, to the other heirs of tailzie appointed by the said deceast James Menzies to suced tohimn his lands and estate, by his bond of tailzie, dated 25th December 1691, and to their heirs and assignies whatsoever.” Ar­ chibald Menzies having accordingly died without issue, the respondents who are now become the heirs in James Men­ zies's tailzie, by the failure of Janet Murray's defendants, come also to be heirs in this disposition from Captain Men- zies,which refers to the destination appointed by that tailzie. With regard to the disposition from John Murray the re- spondent’s father, there can be no doubt but that it must totally be disregarded: The petitioner himself does not pretend to say, that any title whatever was established in his person to the lands of Shian, without which he could never have conveyed them to another. The respondents shall next proceed to consider the defen­ ces offered by the Earl, to exclude them from insisting in this exhibition, as heirs apparent in the estate of Shian, up­ on the footing of the tailzie 1691. It is not denied that the respondents are-entitled to take up the succession in this manner; but the petitioner main­ tains, that they will be excluded by the adjudications led at the instance of his Lordship, and by the deeds of Ar­ chibald Menzies the last proprietor. The petitioner’s whole pretensions to the property of this estate, appear to be o- riginally founded upon an yearly annuity of 1200 merks which was provided to Helen Graeme in her contract o f mar­ riage with the late James Menzies of Shian in 1692; to which which the Earl pretends to have acquired right, and upon which he has led an adjudication over this estate, exten­ ding to no less a sum than 50,000 merks; but the respon- dents are informed, and have reason to believe, that these bygone jointures were acquired by the Earl merely in trust, for behoof of the heirs of tailzie themselves. The whole history of this matter, so far as the respondents have been able to gather it from the partial production now made by the Earl himself, and the best information they have been able to procure, seems to be this: After the death of old James Menzies of Shian, Helen Graeme his widow, finding that the jointure of 1200 merks yearly, provided to her by her contract of marriage, was not regularly paid up, led two several adjudications against the estate of Shian, for payment of the same. These adju­ dications comprehended all that fell due before 1707. About this period Alexander Menzies, husband to Janet Murray, who was administrator in law to his eldest son James, heir of tailzie to old James Menzies of Shian, had contrived to enter into possession of the estate, to the exclusion of the heirs of line, and, as has been already ob- served, was taking every measure to secure and corroborate the title of his son, bethought himself of entering into an agreement with the liferentrix: For this purpose, accord- ingly, ofthat date, it is informed that a contract was entered into betwixt them, whereby she became bound to make over to Archibald Menzies, who was now become heir of tailzie by the decease of his elder brother, the an- nuites hat ould fal ue during the whole period of her life from Whits unday 1707; and Alexander Menzies, as ad- ministrator for his son, became bound to pay her 7400 merks, with this provision also, that if payment was made before the term of Whits unday 1712, this sum should be restricted to 6400 merks. In 1712, Alexander Menzies still acting as administrator for his son, entered into a transaction with the late Earl of Breadalbane. Braedalbane, which was executed in this manner: Alexan­ der Menzies conveyed to the earl the minute of agreement formerly entered into with the liferentrix, and the liferen- trix, at the same time, disponed her right to the Earl, up­ on receiving payment from him of 5572 l. Scots; and the Earl, upon his part, granted back bond to Alexander Men- zies, obliging himself, that so soon as he was paid of the sums advanced to the relict, he should convey the annui­ ties to fall due in time coming to the said Alexander Menzies. Your Lordships will further be informed, that after the death of the said Alexandr, the Earl granted a second back bond to his son Archibald Menzis, late of Shian, bearing, that if the liferentrix lived till Whitsunday 1720, all the sums advanced by his Lordship, for purchasin g the annui­ ty, and likewise the sums due to him by Alexander Menzies the father, would be satisfied and paid; and therefore, upon account of the trust that had been reposed in him by the said Alexander, he obliged himself to discharge Ar­ chibald Menzies of 1000 merks yearly of the jointure for a certain term of years to come. If these informations are well founded, there can be no doubt that the Earl cannot be allowed, in defiance of the transactions entered into by the late Earl, and of the back bonds granted by him to the heirs of tailzie, to set up the whole of those annuities as an incumbrance upon the estate of Shian, in order to evict it from the lawful heirs. The respondents, surely, as heirs apparent to the last heirs of tailzie, are entitled to demand exhibition of the whole transactions and back bonds above mentioned, if these writings are at present in the hands of the Earl or his doers, or if they ever had any existence. Till this be done, it is impossible to determine whether it will be expe­ dient for them to represent these predecessors by a service or not. That this account of the matter is well founded, ap­ pears extremely probable: One thing is certain,that Alex­ ander ander Menzies and his sons were in the practice of purcha- sing the widows annuities in order to secure their posses- sion of the estate. The earl has founded, in his petition, as a corroborative title to this estate, upon two adjudica­ tions, led upon a part of the annuities due by the widow, to which he has acquired right by disposition from Sir Ro­ bert Menzies; and which, joined together, he says, create a burden upon the estate, of no less than 12,000 merks: But, upon examining the conveyances which have been produced by the earl himself, it appears that these adjudi­ cations were conveyed to Sir Robert only in trust for the late Shian; and that by back bond, dated 22d Decmbr 1735, he was bound to denude thereof in favour of Shian upon receiving payment of 3 18 1 l. 10 s. 4 d. Scots, the sum which Sir Robert himself had actually paid to Helen Graeme and her husband; and this is expresl y made a quali- ' fication of the right granted by Sir Robert to the Earl. With regard to the contract entered into betwixt the Earl and Archibald Menzies of Shian, in 1723, upon which so great stress has been laid by his Lordship, it would ap­ pear, that Archibald Menzies, who even then was not quite major, had so entirely forgot the several transactions enter­ ed into by his father Alexander with the liferentrix, for his behoof, and of the back bond which had been granted by the Earl, as to imagine, that the right to the annuities stood in the person of the Earl, Ample and absolute, with­ out the least condition or qualification whatever; and up­ on that supposition he was perswaded to enter into a con­ tract with the Earl, the substance of which is narrated in the petition. But the respondents do humbly maintain, that this contract can in no shape aid the defence that is maintained by his Lordship. 1mo, It would seem that this contract has been tacitlv departed from by the parties themselves. It was entered into in 1723, yet from that time to this, no one step has D been been taken by either of the parties for carrying it into exe- cution. The Earl never thought during the lifetime of Shian of performing his part of the contract, by conveying to Shian the annuities which at that time stood in the person of the Earl; he cannot, therefore, be allowed to demand imple­ ment of the counter part of the contract, either from Shian, or from any of his representatives. In the Second place, your Lordships will be informed that Archibald Menzies, does not appear to have made up any title whatever to the estate of Shian; and the respondents, if they shall think it adviseable to serve themselves upon the tailzie, will be intitled to pass him by altogether. And altho’ he was more than three years in possession, yet if this contract is to stand or fall upon the footing of the act 1696, according as it shall be held onerous or rational up­ on the part of Shian, the respondents will be under very little apprehensions of sustaining any prejudice by it. Your Lord­ ships will further be informed, that altho’ the Earl of Bread- albane has adjudged for the whole annuites that are become due since Whits unday 1707, yet considerable sums had actu­ ally been paid up by the late Shian before his death at different times to the Earl, in so much that in January 1731, an accompt was made out by the Earl of Breadal- bane's doer, from which it appeared that the whole balance resting due to the Earl at that time amounted to a very inconsiderable sum. The vouchers of these payments must probably have come into the hands of the Earl of Breadalbane, or of some of his doers, alongst with the other papers belonging to the late Shian, at the time when the Earl assumed the possession of the estate. If this is the fact, here is a clear pluris petitio, which must either have the effect of annulling the adjudication altoge­ ther, or at least of restricting it to a security for what was really due. Upon the whole, therefore,it appears that the Earl's only pretentions to the estate in question must be as a credi- tor, in virtue of his adjudications, and that his right to the annuites, upon which that adjudication proceeded, instead of being simple and absolute, was merely a trust in his person, for behoof of the heirs of Shian, and that con- siderable sums had been paid up to the Earl before the date of the adjudication. The question therefore comes to be, Whether in these circumstances, a creditor upon an estate, who has by some accident got the writings thereof into his custody, shall be intitled to exclude the undoubted heirs of the ancient proprietors from the privilege granted by law to all heirs apparent, of demanding inspection of all deeds granted to, or by their predecessors, in order that they may thereby form a judgment whether it will be for their interest or not to take up the succesio n? The Earl has likeways endeavoured to avail himself of the usual plea of prescription; but a very little atention will satisfy your Lordships that prescription is altogether out of the question.- If the respondents are to take up the succesio n, by enter­ ing as heirs of line upon the contract of marriage 1602, it does not appear that Archibald Menziswho in this view must be regarded as their competitor, possessed either upon charter or sasine, without which requisite no prescription could take place. If, on the contrary, the respondents shall rather choose to make up their title upon the footing of the deed of tailzie, Archibald Mennzics’s possessio n must be regarded as their possessio n, and the prescription in favours of the Earl could not begin to run, except from the time that he himself entered into possessio n, which was not till after the year 1745. In respect whereof, & c.. R O B E R T B L A I R.