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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marion and Margaret Wrights v William and George Smiths. [1716] Mor 5209 (12 July 1716)
URL: http://www.bailii.org/scot/cases/ScotCS/1716/Mor1305209-011.html
Cite as: [1716] Mor 5209

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[1716] Mor 5209      

Subject_1 HEIR and EXECUTOR.
Subject_2 SECT. II.

Mutual Relief.

Marion and Margaret Wrights
v.
William and George Smiths

Date: 12 July 1716
Case No. No 11.

In a process at the instance of two heirs-portioners against the third, for payment of a debt due to them by the defunct singulari titulo, the Lords found, that the debt was extinguished by confusion as to two third parts, to which they succeeded as heirs portioners, but granted decree for the other third.


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Thomas Wright, merchant in Dumfries, having been twice married, obliges himself, in the contract of marriage with the first wife to secure her in L. 1000 in liferent, and the children in fee; and to the second 2000 merks in the same manner: The only child of the first marriage being married to Mr Patrick Smith, the second wife, of Thomas, after his decease, paid the said L. 1000 to the said child of the first marriage, and Smith her husband; after which, the said child of the first marriage, with consent of her said husband, granted bond to Sir Patrick Maxwell, whereupon he led an adjudication against her, as lawfully charged to enter heir to her father, and adjudged from her some lands, &c. in Dumfries; which adjudication was disponed by Sir Patrick to William Smith, son procreated betwixt the said Mr Patrick Smith and the said deceased Agnes Wright; and the Magistrates of Dumfries are charged to infeft the said William upon the said adjudication.

Upon this there is a process upon the passive titles, raised at the instance of the children of the second marriage, after serving heirs-portioners to their father, against the said William Smith minor, upon the ground of the act of Parliament 1695, cap. 24. concerning the obviating the fraud of apparent heirs.

Answered for the defenders; That the pursuers being served heirs-portioners, their claim is extinct confusione.

Replied for the pursuers; That, as they succeed to the two-thirds of their father's inheritance, so far indeed the debt is extinguished confusione; and therefore they only insist against William Smith, who doth represent his mother as one of the three heirs-portioners, for the third of their provision, in which he must be liable, as having purchased the foresaid adjudication.

Duplied for the defender; That a service in indefinite terms is an universal representation, and therefore a total extinction of the pursuers claims, which must certainly take place, unless they had cognosced themselves heirs of provision, or of the second marriage, in which case only the extinction would have been partial. Further alleged for the defender, That he could not be liable in behaviour, being minor, and not capable to accept a disposition, which was necessary to infer behaviour; and, 2do, That he did not possess the land adjudged.

Answered for the pursuer, to the 1st; That nevertheless the defender must be liable in the terms of the act, unless he repudiate or renounce the benefit of the said adjudication; because, by purchasing it, he had acquired a right to a legal diligence affecting his predecessor's estate, which is all that the act requires to infer behaviour, just as it holds in the case of a successor titulo lucrativo. To the 2d, answered, That the foresaid clause in the act of Parliament establishes a behaviour in two cases, viz. if the apparent heir either possesses his predecessor's estate, or acquire and purchase any right thereto, or to any legal diligence affecting the same.

‘The Lords found the defender liable in the passive titles according to the act of Parliament 1695, unless he renounce the right purchased for him to the tenements and acres belonging to his predecessor; and sustained the defence of extinction of the debt by confusion, in virtue of the general service for two-third parts to which the pursuers succeed as heirs-portioners; but repelled the same as to the other third part.’

Act. Fleeming. Alt. Ila Ferguson. Clerk, M'Kennie. Fol. Dic. v. 1. p. 356. Bruce, v. 2. No 17. p. 21.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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