United Kingdom House of Lords Decisions

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¹ 3rd Dec. 1794 Mor 2384.

² Balfour v. Scott, 15th Nov. 1787; Mor. 2379 and 4617; Hailes, 1032 and 1048.

³ On the remit to the Court of Session the case was heard in presence of all the judges, and the following opinions delivered:

Lords President, Balgray, Gillies, Mackenzie, Corehouse, and Fullerton. “The question remitted by the House of Lords for the reconsideration of

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this Court is, whether the heir at law, taking the heritage of the predecessor by succession, or, what is equivalent, præceptione hæreditatis, can be admitted to a share of the moveable estate, as one of the next of kin, without collating the heritable estate, when it is holden under the fetters of a strict entail? This question, occurring in the simplest and most abstract form, was decided in the negative by an unanimous judgment of the Second Division of the Court in the case of Little Gilmour, Dec. 13, 1809,—a judgment which has ever since been considered and acted upon as having settled the law. But in pursuance of the remit, it is proper, in the first instance, to lay that judgment out of view.

We think it unnecessary to engage in any inquiry as to the origin of the law of collation between heir and executor, at what period or on what account it was introduced, and, in particular, whether it arose from the collision of the consistorial and the feudal law. There are no materials in our records to throw light on the subject; our earliest law writers, as Craig and Hope, are silent with regard to it; and we should not have known that the privilege of collation existed before that time, had it not been for a single decision in 1555 shortly noticed by Maitland and Balfour. Instead of resorting to conjectural history, therefore, for a principle to guide us in this case, it is safer to confine our attention to the rules laid down by our institutional authors of acknowledged authority, or expressly sanctioned by the decisions of this Court.

With regard to the persons who are entitled or bound to collate, the following propositions are indisputably established:

1. If the heir at law claim a share of the moveable estate as one of the next of kin, he is bound to collate the heritage. This is the general and fundamental rule.

2. If the heir at law is himself next of kin, and if there are no kindred in the same degree, there is no place for collation, for he is both heir and executor.

3. In the case of heirs portioners being themselves exclusively next of kin, there cannot be collation, for they are all heirs and all executors.

4. Heirs portioners being in the same degree of kindred with others not heirs portioners, the former, claiming a share of the moveables, are bound to collate with the latter.

5. One of the next of kin, not being heir at law, may take his share of the moveables, and is not bound to collate, though he should succeed to the whole heritable estate by destination.

6. The heir at law, not being one of the next of kin, is not entitled to collate.

Proceeding next to the subject of collation, it is established on similar authority that the heir who shares the moveables, and who is bound to collate, must collate the heritage vested in the predecessor, and transmissible by succession; and therefore, conversely, that he is not bound to collate what is not heritage, what is not vested, and what is not so transmissible. The rule is laid down to this effect, and in unqualified terms, by all the text writers, and in none of them is there an allusion to any distinction arising from the subject being holden under a destination or under no destination; and if under a destination, from the nature of the destination, as whether it be to heirs whatsoever, to heirs

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male, to heirs of tailzie, to heirs of provision, or to heirs of a marriage. If any such distinction existed it was unknown to Stair, to Stewart, to Bankton, and to Erskine, for if it had been known to them it was too important to have remained unnoticed.

Let us consider, then, the grounds on which the appellant contends that the estate now in question, which was heritage vested in the person of the defunct, and which has passed to the appellant by succession, should be exempted from the general rule, to which none of the text writers knew of any exception.

In an early stage of the cause the appellant maintained that collation takes place only in the case of intestate succession, understanding by that term, it is thought, what the heir succeeds to by the act of the law, independently of any deed or conveyance executed by the defunct or his predecessors. That position is plainly erroneous, and is now admitted to be so. He is bound to collate, without distinction, property which has not been made the subject of destination, as heirship moveables, a personal right to land under a minute of sale, and the like, and property which is holden under the most express destination in the investiture. Thus he must collate an estate conveyed by the defunct to himself and his heirs whatsoever; or to himself, whom failing, to his eldest sort nominatim, and the heirs of his body; whom failing, his heirs whatsoever. If the completion of a feudal investiture in the ancestor, containing a destination, were to bar collation, there are few estates in Scotland which would not be exempted from it. The distinction between intestate succession and succession by destination is therefore plainly untenable.

Afterwards the appellant's argument took a different form, and it was maintained that the subject of collation is that to which the heir succeeds in the character of heir at law exclusively, or that which it is said he inherits in fee-simple. Some misapprehension seems to have arisen here from the use of an ambiguous term. In the law of Scotland ‘fee-simple’ has two significations. Sometimes it means a fee destined to heirs at law, in opposition to a tailzied fee; for example, a fee taken to heirs male, heirs of a marriage, or other heirs of provision. Sometimes it means an absolute fee, in contradistinction to a limited fee, that is, a fee holden under conditions or fetters. If the term is employed in the first sense, it is inconceivable how it should form the ground of any distinction in the question of collation. Whether the eldest son, for example, takes an estate, being an absolute fee, as heir at law of his father or as heir male of his father, his situation in reference to that estate, and his rights over it, are identical. In either case the investiture may have been framed by the father himself, or it may have been framed by an ancestor more remote; but in both it is to his father to whom he succeeds, and to whom he must enter heir. His powers and liabilities, after he has entered, are the same in both; he may gift, he may sell, he may burden, he may alter the investiture at his pleasure, and by the very same means. In both he takes by an universal and not a singular title, and in both the effects of his representation are the same. It is not necessary with us, as it is in England, to convert the fee tail by fine and recovery,

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or by any act whatever, into a fee-simple, that the heir may enlarge his powers over it, nor is it possible for him to enlarge his powers by any such act. If he dies without disposing of it otherwise, it goes to his heir male, just as if he dies without disposing of a fee-simple; otherwise it goes to his heir of line, or his heir of conquest, as the case may be. He cannot alter the succession of the tailzied fee on deathbed, but neither can he alter the succession of the fee-simple. Then why should he not collate what he takes by the force of an investiture in the one case as well as in the other; the thing which he has taken being absolutely the same as to use, disposal, liability, and every other conceivable attribute of ownership? And the case is the same whether the fee is tailzied to a man and the heirs male of his body alone, or to a hundred extraneous substitutes in the male line. What is said of a tailzie to heirs male applies to every other species of tailzie, the destination being unfettered, and the heir general sueceeding under it; for example, a tailzie to heirs whatsoever, excluding heirs portioners, to the children of a particular marriage, excluding other children, or, what is quite competent by the law of Scotland, a tailzie to a series of individuals, excluding the heirs of every one of them.

As a tailzied fee, unfettered, is indisputably a fee-simple as to every right in the person of the heir, so it presents as little difficulty in applying the rules of collation as a fee standing to heirs whatsoever. Thus, if the heir of tailzie claims a share of the moveable succession, no conveyance, nor any other act on his part, is requisite to enable the next of kin to obtain a share of this estate. Though he refuses to execute a disposition, by simply taking a part of the executry, he incurs a debt to them, which they may render effectual by a decree of constitution and a charge to enter, followed by an adjudication. It may be added, that the very same steps would be necessary on the part of the executors, if the estate, instead of being destined to heirs of tailzie, were destined to heirs whatsoever, and if the heir, with a view to avoid collation, should refuse to make up titles, and to dispone.

But it is needless to enlarge upon this point, which seems to have created some difficulty in the House of Lords, because it is distinctly abandoned by the appellant himself. He admits that whatever is the form of the title,—whether the investiture stands to heirs whatsoever, or whether it contains a special destination to heirs of provision,—yet, if the deceased had the full power of disposing of it during his life, it must be collated. ‘Where the deceased,’ he observes, “has held an estate in fee-simple, and over which, during his life, he had the full power of disposal, the heir at law must collate it, though the investiture may have been one of special destination, instead of leaving the succession to be regulated by the mere operation of law. But this peculiarity, namely, where the heir at law must take in form as an heir of provision an estate which the ancestor held in fee-simple, and which, without adverting to the particular form of the investiture, he has allowed to descend to his heir at law, is just one example of the more general rule, that the form of the title makes nothing against the truth of the case, and the rights of parties thence arising.” (Appellant's case, p. 7.) This

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is in some measure to reverse the argument, as it was put at first, holding that the subject of collation is the heritage which does not descend ab intestato to the heir, but which he takes in virtue either of the express or implied will of the deceased. If the deceased has made an unfettered investiture under which his heir general takes in the first instance, it is admitted to be of no moment whether that investiture be conceived in favour of heirs general or heirs of tailzie or provision. And, in like manner, if he allows an investiture made by a remoter ancestor to remain unaltered when he had the power of altering it, which gives the estate, in the first instance, to his heir of line, this is said to be equivalent to a donation by himself to his heir of line, it being the indirect expression of his will to that effect. The admission is very material; it discards from the argument all pleas resting on the form of the destination, as whether it is simple or tailzied, and on the circumstance whether it was framed by the deceased or by a remoter ancestor; and puts the case on the point, whether the deceased had or had not the power of disposing of the property, which on his death has devolved on his heir at law as in his right. Stating the question in this general and abstract form, it is plain that it must be answered unfavourably for the appellant. There are many well known instances in which the deceased has no power to alter the investiture, whether standing to heirs general or heirs of tailzie, in which collation undoubtedly takes place. The investiture may have been framed by a remote ancestor, and the deceased, who succeeded and made up his titles, may have died in minority, or he may have been insane from the time he succeeded till his death, or he may have succeeded while he was on deathbed. In all these cases the heir takes independently of the will of the defunct. In some of them the defunct is incapable of having any will upon the matter; and in others his enixa voluntas, distinctly expressed, may have been, that the heir at law should not take. Thus, if the late Sir John Carmichael, who died in minority, had held any lands as in absolute fee, whatever might have been the destination, the law holding that he could express no will with regard to them, would have allowed them to descend in terms of the Earl of Hyndford's or of Sir John Anstruther's investiture; and if Sir Wyndham took them as heir under that investiture, he must have collated. It is in vain, therefore, to contend that the criterion of collation is, whether the estate was or was not taken by the express or implied will of the ancestor.

These preliminary observations have been thought necessary to clear the case of much irrelevant matter which has been introduced into it, and to raise the question of law on which parties are properly at issue, namely, Whether the estates in question are not subject to collation, because they are not absolute but limited fees? If the case of Little Gilmour is not to be held a precedent, this question requires very careful consideration.

The general rule of law, as already stated, being, that all heritage in the person of the deceased is subject to collation, and that rule being laid down by every authority, without qualification or exception, it is incumbent on the appellant to show why the lands in question, which,

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though strictly entailed, were heritage in the person of the deceased, should not fall under it. He attempts to do so on various grounds. First, he maintains that heritage, in the sense of the text writers, is heritable property; but that an estate holden under the fetters of a strict entail is not the property of the heir, because he has no power to alienate, burden, or alter the order of succession. The criterion of ownership, he says, is the liability of the estate for the proprietor's ‘debts;’ and, as the heir in possession of the entailed estate cannot affect it with his debts, therefore it cannot be considered as his estate.

If there be any point undoubtedly settled in the feudal law of Scotland it is this, that the heir of an entailed estate, however strictly limited or fettered, as soon as he completes his titles, becomes the proprietor of that estate. Before he enters, the fee is in the hæreditas jacens of his predecessor. He takes it up by special service, the mode by which feudal property is transmitted from the dead to the living, or by some equivalent form. The inquest declare that the predecessor died vested and seised as of fee, and that the claimant is the next heir, and entitled to be infeft. When he is infeft he becomes the vassal, not by a singular but by an universal title. If he refuses to enter, the superior can compel him to do so by means of a charge of horning under the statute. In consequence of his entry all the rights of a vassal open to him, all the obligations of a vassal are incumbent upon him, and all the feudal incidents fall in his person. Were it otherwise, the fee of a strictly entailed estate might remain in pendente for centuries, contrary to an axiom or fundamental principle of the feudal law. When we say that a strictly entailed estate is a limited fee, we do not mean that it is limited as to its integrity, for all and every part of the fee is in the heir who has entered. No fraction or shadow of a real right is vested in any of the substitutes, who are merely personal creditors, having power in that character to enforce the conditions of the grant. It is in respect of those conditions that the fee is said to be limited; for if the heir does not comply with them, he exposes himself to the danger of forfeiting his right, that is, of being divested of the whole fee, which before was wholly in him. In the words of the revised case for the Marquis of Chandos, now at avizandum before the Second Division of the Court ¹, “The title by which the estate is held,— the powers which may be exercised in regard to it,—the legal provisions that are payable out of it,—the mode of constituting securities, whether legal or voluntary, over it,—its liabilities for the debts of apparent heirs,—the operation against it of the statutory certification on a charge to enter heir,—the application of the law of treason in regard to it,—and the manner by which it descends to, and the title by which it must be taken up by, the next successors; in not one of

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these particulars is there the shadow of distinction in point of principle between an estate held under the strictest entail and the present instance of an estate in fee-simple. Both estates may be restricted and qualified in various respects by burdens, and there may be a certain degree of peculiarity in that special class of burdens which more immediately form the characteristic of an entailed estate. But in all that relates to the essence of the matter—in all that enters radically and fundamentally into the constitution of the estate itself, or in any respect touches the inherent character of the right and title of its proprietor, or of those succeeding to him, there is not so much as an iota of difference.”

All this is so familiar to every one acquainted with the feudal law of Scotland, that the statement of it here may be thought superfluous, and the proof by authority or precedent would certainly be inexcusable.

That the jus disponendi,—that is, the power to alienate or burden,—is no test of ownership, is a point equally clear. On the contrary, it is excluded by the very definition of that right in the law of Scotland, as well as in that of Rome. ‘Property,’ says Erskine, (Book ii. tit. 2. sec. 1.) “is the right of using and disposing of a subject as our own, except in so far as we are restrained by law or paction;” and this is exactly the language of the civilians, who define dominium to be “jus in re corporali ex quo facultas de ea disponendi, eamque vindicandi, nascitur, nisi vel lex, vel conventio, obsistit.”

In the case of a strict entail there is a convention between the entailer who frames it, and the institute or heir who takes under it, that the latter shall not have power to alienate or contract debt,—that is, the entailer dispones it under these conditions, and the institute or heir, by his entry, accepts the estate under these conditions, and becomes bound to comply with them. This convention, express or tacit, is authorized and rendered effectual against third parties by the statute 1685, and consequently the right of the heir, notwithstanding the restrictions to which it is subject, comes under the express legal definition of the right of ownership.

But the argument is put by the appellant in a form at first sight more plausible, and it is the ground on which he now chiefly, if not exclusively, relies. He says, granting that the heir of a strict entail, when entered, is the proprietor of the entailed estate in point of form and in correct legal language, nevertheless in substance and reality he is nothing more than an usufructuary; in equity, therefore, he ought not to be called on to collate his interest under the entail, on the same principle that he does not collate heritage, which, under the disposition of the ancestor, he holds in life-rent. In illustration of this principle, he refers to the case of præceptio hæreditatis, when the heir is forced to collate what he has acquired, not by a universal but by a singular title,—what he has not succeeded to by a deed mortis causa, and in consequence of the predecessor's death,—in reality, what he has not succeeded to at all, but what was conveyed to him by a deed inter vivos, and while the ancestor was alive. In that case, it is said, the substance and not the form of the right is regarded, that the executor may get equity from the

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heir in opposition to the strict rule of law, and therefore he must give equity to the heir in the present case on the same principle.

To begin with the illustration,—the appellant's inference would have had some colour if the doctrine of preception had been introduced into the law of Scotland for the sole purpose of equalizing the interests of the heir and executor in the case of collation, for it might then have been considered as an interposition of equity to remedy the defect of the general and strict rule of law. But that is not its origin. The doctrine of præceptio runs through the whole law of succession; for if the real estate or any part of it is propelled by the ancestor during his lifetime to his heir alioqui successurus, without a valuable consideration, the subject so taken shall be accounted inheritance, and to a certain extent shall infer representation and liability for debt. The heir receives it by a universal, not a singular title; it constitutes a succession, and not a gift, and is no contravention of a prohibition to alienate under which the ancestor may have been laid. In accordance, therefore, with this rule of universal application, and without any reference to equity in the particular case of collation, the heir must communicate what he has taken præceptione.

The doctrine of præceptio, therefore, though affecting collation, as well as every other department of the law of succession, affords no analogy for holding a limited fee as equivalent to a life-rent, though in some, but indeed in very few respects, they may be similar. In truth, the common law of feudal succession uniformly resists the intervention of equity to temper or modify its rules. Thus, if a brother dies infeft in lands, his sister-german succeeds; if he has omitted that ceremony, his brother consanguinean takes the estate. Thus, in the case of heirs portioners, if one dies infeft, her sister-german is preferred to the other heirs portioners, being consanguinean only. Thus, if an heir portioner dies, leaving a child who dies uninfeft, his aunts, the other heirs portioners, succeed; but if the child has been infeft, the estate does not go to them, but to the child's brother or sister consanguinean, if he has any, and if he has not, to his father; or, failing him, to his father's heir general, however remote. What is it that sends the succession into channels so widely different, in these instances, contrary to every feeling of equity and every principle of natural justice? Nothing but the mere ceremony of passing an infeftment, which may be done without the knowledge or consent of the heir, and sometimes, as in the case of an infant, when he is incapable either of knowledge or consent. But if the mere ceremony of infeftment produces such extensive and important consequences in all the ordinary cases of heritable succession, is it surprising, in the case of collation, that the circumstance of being seised or not seised in the fee should produce similar effects?

The doctrine of collation itself affords many remarkable instances of the strict exclusion of equity in applying the rules of feudal succession, as to which there is now no dispute. If the defunct, though in possession for more than three years, and therefore capable, under the statute, of burdening the estate with his debts, shall remain unentered, his eldest son and heir at law, making up a title to the lands, may take a

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share of his moveables without collation; but if he has passed an infeftment, his heir at law is bound to collate. It is in vain to say that in the one case the defunct is proprietor of the estate, and in the other that he is not. That is true, but it is the very same circumstance which imposes the obligation on the heir of entail having completed his titles, and by so doing having rendered himself proprietor. If equity were to interpose to relieve the heir of entail from collation, econverso it should interpose to make the successor of the apparent heir liable to that burden. A distinction resting on the naked ceremony of infeftment alone ought not to be adhered to in the one case and abandoned in the other.

So also, had equity been regarded, a younger son succeeding to the whole heritage of the defunct by destination would at least have been equally bound with his elder brother, the heir of line, to collate.—Here, in like manner, it is in vain to argue that there is an analogy between the younger son and the heir of entail, because they both inherit, not by the act of the law, but provisione hominis. It has been already observed, that although the heir at law takes an unlimited fee by a deed of provision not made by his immediate predecessor, who from circumstances might never have possessed the power of altering it, he is nevertheless bound to collate. The analogy, therefore, entirely fails, while the strict rule of law, contrary to every equitable view, bestows a privilege on the younger child which it withholds from the elder, the heir alioqui successurus.

Another illustration of the danger of resorting to equity may be found in the case of a grandson by the eldest son deceased representing his father, and coming into his place, who has not the privilege of collation which was competent to his father. Here the equity is so manifest, that even Mr. Erskine was led to hazard an opinion, in the absence of precedent, that the grandson was entitled to the privilege; but the Court soon after decided otherwise.

But even if equitable considerations were admissible, or, in the words of the appellant, if the substance and not the form of the right were to be regarded, it would not avail him. The right of an heir in possession of an entailed estate is generically different from that of a life-renter, to which the appellant resorts for an analogy. When the heir of entair has completed his title, as already observed, he is fiar in every respect; but no infeftment which the life-renter can take, no ceremony which he can perform, will vest a fee in him, or any thing of the nature of a fee. His powers are different from those of a fiar—his liabilities are different—his life-rent is incommunicable inter vivos, and intransmissible by succession. In the language of the civilians, inhaeret ossibus usufructuarii.

The appellant pleads, that, since it is conceded that the fee of an heir of entail is limited, on that ground alone he should be exempted from the burden of collation, which he assumes to exist in the case of absolute fees exclusively. But there is no ground for that assumption. The reverser, the wadsetter, the appraiser before the legal has expired, the owner of every other redeemable right, the fiar burdened with a life-rent

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or any other incumbrance, or with a clause of pre-emption, or an obligation of real warrandice, are all vested with limited fees; not absolute proprietors, but subject to restrictions more or less extensive, according to the nature of their respective rights; yet all these fiars are indisputably bound to collate. Nay, it has been decided that a tenant under a lease for years, who, according to modern ideas, has no feudal fee in him at all, whose right is not only limited as to duration, but restricted to one among all the various uses of property, if he, being heir at law, take the lease by succession, is bound to throw it into the fund of division before he can obtain a share of the executry;—a decision resting on the general canon of the law of collation, so often referred to, the lease, though not a fee, being heritage in the person of the defunct.

Next, it is said that the heir of entail is not the heir of his predecessor who last entered under it, but of the remoter ancestor who framed the entail, and that he does not take by legal succession but provisione hominis et secundum formam doni; and then again, not very consistently, that he does not take as an heir at all, but as a purchaser, and by a singular title.

But an heir of entail does not enter by his service to the maker of the entail, except in the solitary case when the maker is his immediate predecessor. The statute 1685 expressly declares that he shall serve himself heir to the heir who died last infeft in the fee, and did not contravene, that is, whose right was not evacuated by forfeiture. By service he necessarily becomes an universal and not a singular successor, for it is a contradiction in terms to say that a right transmitted by service is not a right of inheritance, but a right by purchase. By his service he represents the deceased, to whom he succeeds in all his rights and all his obligations, in so far as those obligations are not prevented from attaching upon him by the act of the law itself. In other words, he must fulfil every obligation of the deceased which is not prohibited and declared to be null by the entail, a prohibition and irritancy which the statute has rendered effectual. He is not liable ultra valorem for obligations not prohibited, for the same reason that the heir of a simple destination is not liable ultra valorem, if he enter cum beneficio inventarii, or on a precept of clare constat; but under the protection of the statute he is the heir of the person last infeft, therefore he does not take by a singular title. To say that he takes provisione hominis et secundum formam doni, is to say nothing more than that he takes in terms of the investiture, in the same manner as the heir whatsoever, or any other heir of a simple destination, takes in terms of the investiture. The heir alioqui successurus succeeding, not by virtue of an investiture to heirs whatsoever, not in the character of heir at law, but by virtue of a deed of provision, by a service as heir of provision, et secundum formam doni, in terms of his deed, is nevertheless bound, if unfettered, to collate. That was explicitly admitted in the case of Little Gilmour, and is as explicitly admitted here. But if the fetters of an entail create no distinction in this matter any more than any other incumbrance on the fee, or any other limitation of the

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fiar's right, as we think we have satisfactorily shown, it is plain that the combination of these two pleas, aided with the groundless assumption that the heir in possession is the heir, not of his immediate predecessor, but of the maker of the entail, must be entirely unavailing.

Great weight is laid by the appellant on another view of his case, presented sometimes by itself, and sometimes in support of the pleas which have been already considered. Granting, it is said, that the substitutes under a Scotch entail have neither the fee nor any portion of it vested in them, in which respect their situation is altogether different from the remainder-man of an English fee tail, still they have a right of credit to the estate, not feudal indeed, but personal, which entitles them to demand that the entail shall be recorded, to insist in declarators of irritancy, and to take other steps for enforcing the fetters; and that right is not derived from their predecessor, but conferred upon them directly by the entailer. Further, it is a right which is frequently not gratuitous, but purchased with a price; for example, the execution of the entail may have been stipulated in a marriage contract, marriage being confessedly an onerous consideration. If the son purchase the estate from his father, or from a third party, for a sum of money, and obtain a disposition to it, he is not bound to collate it; and therefore, by parity of reason, it is said he ought not to be required to collate in the case supposed. This view seems to have occasioned considerable difficulty in the House of Lords.

But the law of Scotland affords an obvious, and, it is thought, an invincible answer. The substitute, as already mentioned, has no right to the fee; his right is to succeed to the fee as an heir, and therefore under the obligations which attach to an heir. As a personal creditor he is entitled to nothing but to enforce the conditions of the grant; and unless he actually obtain a decree of irritancy the heritage remains in the defunct, and as heritage, therefore, must be collated. No personal claim which the heir can have against his father can prevent collation of what he takes from his father by inheritance, although it may indirectly and ultimately render the subject which he has collated less valuable. An heir so situated must collate the estate under its burdens, and so does the heir of entail when he collates his fee, which is a limited fee. It is true the heir is not bound to collate a subject which he has purchased from his father, if by the terms of the purchase it is to be conveyed to himself. But if he has not purchased the subject, but only a right to succeed to the subject, as heir of his father, and when, therefore, it is not to be conveyed to himself, but to his father in fee, whom failing, to himself, such purchase is no bar to collation. So it is in the case of a marriage contract, in which, for example, the father of the bridegroom, being a party, binds himself to the bride and her relations that he shall execute an entail of his estate in favour of himself; whom failing, of his son; whom failing, the heirs of the marriage, in consideration of the marriage, and of the portion of the bride, conveyed to the married pair. This was stated to be a settled point as early as 1678, in the case of Murray (Mor. 2374), and it was not disputed on the other side of the bar. The question arose in the case of præceptio, the

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father having put forward a tenement to his son; but it is said that “it is ordinary for fathers in their sons' contract of marriage to them in their whole heritable estate, whereby there remained no heritable succession, and yet they were never admitted to partake of the moveables, but were excluded as heirs per præceptionem hæreditatis.” Thus in the a fortiori case, where the father, an obligant in the contract of marriage, and bound to make a provision for his heir, instead of leaving the heir to succeed to that provision, actually put him into the fee in fulfilment of his obligation, no doubt was entertained, for it was an ordinary case that the son was bound to collate. There is another case in 1680 where the same principle is recognized:

“By contract of marriage the lands being provided to the heir by the first clause, and the conquest to the bairns in a subsequent clause, the lords found the heir had a share in the conquest (though it was most part executry), without collation, because he was also a bairn.”

(Brown, July 21, 1680, Mor. 2375.)

In that case collation was excluded, not because the heir had a jus crediti to the lands under the marriage contract, which, if the appellant's argument were well founded, would of itself have been conclusive, but on a totally different ground, namely, that by another clause of the contract the father had bound himself to give the children, and therefore the heir, being one of the children, the conquest of the marriage, which was chiefly moveable. A father has at all times the power of excluding collation; but he does so by conveying to the heirashare of the moveables, which, unless so conveyed, would have gone to the executors; and it is plain from the ratio decidendi that if the father had left personal estate which was not conquest of the marriage, and therefore not falling under the second clause of the contract, the heir could not have claimed a share of it without collating his lands.

Thus, it appears that a jus crediti in an heir (even although it be not acquired by gift, but for an onerous consideration,) to succeed to his predecessor's heritable estate, does not relieve him from the obligation to collate; nor is he relieved though the predecessor, in fulfilment of his obligation, chooses to propel the succession by a deed inter vivos.

It has been said that the heir is not bound to collate a fee strictly entailed, because he cannot alienate the lands to the executors without the risk of incurring an irritancy. If it were so, the consequence would be, as is well laid down in the Little Gilmour case, that he would never get a share of the personal property at all, because he could not comply with the condition under which exclusively he is entitled to that share. But it is undoubted law that the heir collating is not bound to convey to the executors an absolute fee. He must share the heritage with them, subject to all the burdens under which he himself has taken it. There is nothing to prevent him to convey to them a right to the lands or to their produce, defeasible in the event of his own death, or of a decree of irritancy being obtained against him. This is no contravention, if the decision in the case of Nairne, (Feb. 15, 1810,) and the ordinary practice of the Court in dealing with entailed succession, can be relied upon. If not, certainly there is no impediment to his sharing the produce

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of the tailzied estate with the executors; and if they consent to hold that as collation, it is enough. It is a case a fortiori in their favour, that he is not able to pay all the price which ordinarily they receive for a communication of their right to the moveable succession.

We are of opinion, therefore, that the general principles of the law of Scotland afford no ground for holding a fee limited by strict tailzie, more than any other limited fee, to be exempted from collation, or for supposing that it forms an exception to the rule laid down by the institutional writers, in absolute terms, as applicable to all heritage whatever in the person of the defunct, descending to the heir alioqui successurus. Neither do the decisions of this Court, or of the House of Lords, exhibit a trace of evidence that such an exception was ever recognized. The cases of Murray and of Brown, on the contrary, as we have just seen, negative the plea that heritage, because it is taken in virtue of a deed of provision, or because the heir who takes it has a jus crediti to the succession, is exempted from the rule. The case of Scotstarvit shows that lands holden under a special destination or tailzie fall under it. And in the case of Rae Crauford (Dec. 3, 1794), where the estate was strictly entailed, it follows, by plain inference from the interlocutor of the Court, that if the lady had been heir of line, which she was not, but only heir of provision, which by itself imposed no such obligation, she would have been bound to collate.

That neither the case of Rickarts nor that of Scotstarvit can afford aid to the appellant is, in our opinion, sufficiently obvious. In the former, it was impossible that there could be collation, because the succession did not divide into separate channels. All the daughters were heirs at law, and all of them were executors. The fundamental principle of the law of collation is, that the heir who is excluded from the moveables shall purchase a share of them by throwing the heritage into the common fund. But in the case of heirs portioners, each, dejure, has a share of the moveables, and therefore the eldest has no occasion to purchase that right. And this was only a repetition of the judgment pronounced in the case of Jack many years before, where the Lords found that there was no collation to be made by the law of Scotland but only in the case of moveables, which, according to Gosford's report, was looked upon “as a constitute custom, without all controversy or debate.” The case of Scotstarvit, so far from giving any countenance to the appellant's plea, affords a direct precedent against one of his arguments; for the Court held that an estate taken by the heir at law provisione hominis, and that provision made not by the immediate but a remoter ancestor, was liable to be collated equally as if the investiture had stood to heirs whatsoever. It might be inferred from the report that the eldest heir portioner was found by the Court liable to collate, not only with her cousin Mr. Hay Balfour, but with her sisters, the other heirs portioners; but that was not the case. It appears from the session papers that the action was raised at the instance of Mr. Hay Balfour alone against Miss Scott, and though her younger sisters were directed to be made parties, they withdrew from the contest.

An ingenious view was thrown out by Lord Meadowbank, in the

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case of Little Gilmour, as to the extent of the subject which Miss Scott was bound to collate with the Balfours, the other executors. His lordship observed, that she was undoubtedly bound to collate that portion of the inheritance to which she was heir alioqui successura; but that it might be questioned whether she was bound to collate the other two thirds to which her sisters were heirs, for those two thirds were given to her by destination alone; and with regard to them, that she did not seem to have been in a different situation from a second son, or any other heir alioqui successurus who is not bound to collate what he takes by destination; and he states the ground on which he holds it was successfully maintained that the collation should extend to the whole subject. It may be thought by some, on reading this part of the report, which is somewhat obscure, that his lordship has been more successful in raising the doubt than in solving it. Be that as it may, that point in the case does not touch the present in the remotest degree. This is not a case of heirs portioners, where no one is heir alioqui successura exclusively; nor is it a case where the executors are contending, not with an heir, but what may be called an aliquot part of an heir. Here the appellant, as in the ordinary case, has the whole character in himself, and he is at issue with those who are exclusively executors. It is likely that Mr. Erskine, the learned author of the Institute, might not have approved of this decision, in so far as the last-mentioned point is concerned, or in so far as it was plainly erroneous in holding moveable succession to be regulated by the lex rei sitæ; but in so far as it found that the heir must collate though he takes provisione hominis, it is in strict concurrence with what he himself lays down, what all his predecessors laid down, what the Court considered as settled in the case of Murray, and what, as Sir Wyndham Anstruther is now compelled expressly to admit, is the established law of Scotland.

The views which we have taken might be illustrated and enforced by much additional argument and a citation of various other authorities and decisions; but we consider this to be unnecessary, as the question is in our opinion ably argued in the respondent's appeal case, and still more fully and elaborately in the revised case for the Marquis of Chandos and others, now at avizandum before the Second Division of the Court, to which we beg leave to refer.

Having, in obedience to the remit from the House of Lords, treated this as an open question, we must now advert to one consideration which, in our humble but very decided opinion, ought alone to set the matter at rest. We allude to the decision in the case of Little Gilmour, pronounced, as already mentioned, by the Second Division of the Court in December 1809. That decision was as solemn and deliberate as the forms of this Court allow. It was unanimous; it was acquiesced in by the parties; it has been subsequently followed by one other decision at least to the same effect, and one other case at least of great importance has been extrajudicially settled upon the faith of it. To disturb such a precedent would, in our apprehension, be contrary to principle, and might be attended with the most disastrous consequences. It is no

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impeachment of the authority of that judgment, that it was pronounced by a Division of the Court, and not by the whole Court. Many thousand decisions have been pronounced since the judicature act in 1808, when the separation took place, by one Division, without any communication with the other. Those decisions are all the country has to rely on as the established law of Scotland in the matters to which they relate, and on them the country does rely. Still less is it an objection that the judgment in Gilmour's case was never sanctioned by an affirmance of the House of Lords. Were that essential, considering how extremely few cases comparatively are appealed, it would go near to overset the whole common law of Scotland. In questions of international law, such as that we have just alluded to in the case of Scotstarvit, namely, whether the succession of moveables should be regulated by the law of situs or domicil, if the Court of Session err, it is the province and duty of the House of Lords to set them right, and that although the judgment may have been again and again repeated; for it is not the law of Scotland, but the jus gentium, which the House of Lords has there to administer, and as to which the Court below is not equally authoritative. The same thing may be said of some questions in the law merchant, which it is expedient should be uniform throughout the empire, indeed throughout commercial Europe. But if a point occurring purely and exclusively in the municipal law of Scotland cannot be ruled with authority by a judgment of this Court, in either of its Divisions, especially when confirmed by subsequent judgments, and regarded and acted upon as settled for a quarter of a century, the people of Scotland would be deprived of what they have been taught to consider as the safeguard of their most important rights.

“ Lord Moncreiff.—I concur in the foregoing opinion. I certainly cannot think that it is an open question; because I have long considered it as settled by the case of Gihnour, and can never think that no point of municipal law can become settled unless it has been determined in the House of Lords. But if the question were open, I agree in every word of the above opinion, and should be prepared to deliver the same judgment if it were a case of first impression. I think that the principles laid down are in all points sound; and the exposition of the manner in which these principles are to be applied to the present case appear to me to be clear and satisfactory: I could only express my own opinion by writing the same thing in other words. I beg leave, however, only farther to observe, that the argument of the appellant has been brought almost directly to an avowal of a principle, that the interest of an heir of entail, in possession of a Scotch entailed estate, is little better than a life-rent, and that the entail of a Scotch estate does differ in substance from a trust, with a succession of life-rents; and that, if the case does at all depend on any such assumption, I can only say, that it is contrary to all the principles and fixed rules of the law of Scotland, as they have been uniformly recognized both by this Court and by the House of Lords. But, whether the argument be pushed so far as this or not, I am of opinion that it is a point of settled law, and that, if it were not settled, it ought to be settled in the same manner.

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Lord Jeffrey.—If I could consider the question as entirely open, I should have some hesitation about concurring in the preceding opinion, and certainly could not bring myself to regard it as so clear and simple as it is there represented.

The difficulty of the case I take to be this:—The fundamental principle of the whole law of collation being that the obligation (or right) attaches only to heirs of line, it seems to follow, almost as a necessary conclusion, that they should collate only what they take in that character. Certainly they can be called upon to collate nothing that was not vested in the ancestor to whom they stood in that relation, and nothing that has not come to them on a proper title of succession to that ancestor; and this being the case, it seems difficult to suggest a reason why they should ever collate more than has actually descended to them in virtue of that relation. If the whole question were open, therefore, I conceive there could be little doubt that this is the rule by which it should be governed. But it seems to have been long settled that collation may be required in many cases, where the heir of line takes the heritage which was in his ancestor, not by a service in that character, but as heir of provision or investiture, and by the act of a predecessor in the fee; and it is said that the case of an heir of entail is not substantially different.

There is no doubt that those cases are exceptions to the literal or peremptory application of the rule; but it appears to me that they may still be reconciled to its principle; and that, except only in the case of a strict entail, there are grounds upon which it may be held, though perhaps not without some aid from hypothesis and construction, that what is thus collated is always truly taken in the character of heir of line.

Where a fee is taken simply to a man and his heirs whatsoever, it is entirely at the disposal of the fiar in possession; and if he makes no disposition, it will go to his heir of line: not, however, it is conceived, upon any view of public policy, but ex presumpta voluntate of the defunct, and on the supposition that such heir is the person he most inclined to favour. But if this be the ground of the heir of line's right of succession where the fee in the ancestor was altogether unlimited, it is easy to see that it may be held to be the same where it was only limited in such a manner as to leave him the full right and power of disposal. If he have power to change an existing investiture, under which the fee would be carried, in the first instance, to his own heir of line, then his not exercising that power may be held to be exactly parallel to his not making any disposition, in the case of a fee absolutely unlimited; and the heir of line may be held to take the succession, in both cases, ex presumpta voluntate of his predecessor, and truly in his character of heir of line, because in consequence of the favour which the law holds to attach to that character. The predecessor, in short, may be held, in both cases, to have adopted and made his own the destination, of the common law in the one, and of an earlier ancestor in the other, out of love and affection for his natural heir; and he may therefore be regarded as owing his succession, in the latter case as well as in the former, to his possessing that character.

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But if the other cases of apparent exception may be reconciled in this way to what I cannot but consider as the principle and natural rule of law, it is plain that such an explanation will not serve for that of a strict entail, where the heir in possession has no power whatever either to defeat or confirm the succession of the other substitutes. The cases of personal or accidental incapacity, as from minority, insanity, or individual paction, do not seem to have any application. There the inability to alter arises, not from the quality of the right, but from the circumstances of the persons. As fiars, they have full power, though, as individuals, they may be disabled from exercising it.

The case of heirs of a marriage is more perplexing, and certainly comes nearest to that of a strict entail. Yet it is not exactly parallel; since the fiar, though under a personal obligation not to disappoint the succession of such heirs, is not absolutely disabled, by the quality of his right, from so doing. He may accordingly sell or burden the settled lands, though he will be answerable in his general estate for the value.

But though doubts may be thus raised, and plausible distinctions suggested, if the question as to heirs of entail could really be considered as open, I am bound to say that I have no such confidence, either in the grounds of doubt or the sufficiency of the distinctions, as would induce me now to depart from such a precedent as that of Gilmour, and that upon this point I entirely agree with the other judges. Whether I should have concurred in that judgment at the time it is impossible for me to say; but it seems to me plain, that by now adhering to it no clear or consistent principle or rule of practice in the law of Scotland will be violated, or any thing, indeed, effected by altering it, but the substitution of one solution of a nice and perplexing question instead of another. It being quite settled that heritage, not taken on the proper title of an heir of line, is yet liable to collation, it was not perhaps an unwise course to disregard subtle distinctions between particular cases, and to decide generally for such liability, wherever an heir of line took by succession the heritage vested in his predecessor. At all events this was the course adopted, certainly not without the greatest possible consideration, in the case of Gilmour, nearly thirty years ago; and I cannot think it safe or advisable now to disturb it upon speculative doubts and difficulties. It is matter of notoriety that it has ever since been regarded, and acted upon, as settling the law.

Lord Cockburn.—I concur in the foregoing opinion.

Lord Justice-Clerk.—In obedience to the order of the House of Lords, pronounced in this case, the question of law was most fully and ably argued before the whole judges; and as the judgment ordered to be reviewed had been pronounced by this Division, we thought it right to require the opinions in writing of the judges of the First Division and permanent Lords Ordinary, in order that judgment may, in terms of the order, now be pronounced, “according to the opinions of the majority of such whole judges.”

Those opinions are now before the Court, and they unanimously concur in holding, in substance, that the judgment of this Division of the 28th of November 1833, finding, “that Sir Wyndham Carmichael

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Anstruther cannot claim any share in the executry of the late Sir John Carmichael Anstruther, without previously collating the heritage to which, as heir of Sir John, he has succeeded,” is well founded, and ought to be adhered to; so that, even if all of us present were now of a contrary opinion, such must be the deliverance of the Court.

Directed, however, as we all were by the House of Lords, to have the matter of law deliberately argued, I have, in common with your lordships, paid every attention to the able arguments of counsel, and the various authorities referred to by them. But, so far from being shaken in the opinion I had formerly entertained upon the case, I have been more and more confirmed in it by all that I have heard from the bar, and since read in those most able and elaborate pleadings that have been laid before us in the important question, embracing the same point, that has arisen between the Marchioness of Chandos and her brother the Marquis of Breadalbane, relative to the succession of their late father, and which also stands for judgment in this day's roll.

I am not at all surprised that the argument for Lady Chandos has attracted the marked attention of the judges, who have favoured the Court with a full opinion in this case, because it does contain a most masterly and satisfactory examination of the whole principles of law that are applicable to this question, and which are expounded in a way to remove, in my opinion, all room for doubt or hesitation as to the manner in which it ought to be determined, if the law of Scotland is to rule the decision.

Concurring, therefore, as I most entirely do, in the luminous exposition which is given in the opinion of the Lord President and the other judges who concur and subscribed it along with him, I should consider it as an unpardonable and useless encroachment on the time of the Court were I to attempt to state in more imperfect language those views of the case which I entertain, and which in that opinion are so clearly and admirably expressed.

But as some notion seems to have been entertained, that in pronouncing our judgment in this case in November 1833, we proceeded merely upon the authority of the case of Gilmour, I shall, in my own vindication, now read the notes of the opinion which I then delivered, as deliberately formed, and to which I now adhere in every respect, after all the investigation that the case has since undergone. These notes, which are now before me, are in the following terms:—

“Upon considering these cases, in which the Lord Ordinary has taken this cause to report, (and which are drawn with great ability, and particularly that on the part of Mrs. Anstruther,) raising the question whether an heir of tailzie, who is at the same time heir of line of the deceased, is bound to collate his interest under the entail before he can claim a share of the executry of the deceased, as one of his next of kin, I have formed a most satisfactory opinion, that, according to a fair review of the whole authorities in our institutional writers and decisions, that question must be answered in the affirmative.

The question indeed was so fully discussed, both by the bar and the bench, in the case of Gilmour v. Gilmour, 13th December 1809,

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when the whole train of authority and decision was most thoroughly sifted, and a most elaborate opinion delivered by the late Lord Meadowbank, embracing the whole law of the case, and grappling with every sort of distinction that could be drawn as to the application of the principle of the judgment which was there solemnly and unanimously pronounced against the heir of tailzie and of line who refused to collate, that it appears to me wholly unnecessary to enter at any length into the discussion. That decision has not been altered by a higher tribunal. No contrary decision has since been pronounced, but, on the contrary, the law, as there expounded, has been held as settled and finally fixed. It would therefore have been on no light grounds, and certainly on no thin or fanciful distinctions as to the circumstances of particular destinations of entails, that I, for one, would have been disposed to depart from that judgment.”

“But upon full consideration, however, of the argument in those cases, I have seen no reason to doubt of the soundness of the decision in the case of Gilmour, which establishes that the doctrine of collation does attach to an heir of entail, and who is also heir of line of the deceased, claiming, as one of the nearest of kin, share of his executry. I must therefore be for preferring Mrs. Anstruther to the whole fund here in medio.”

I abstained at that time from enlarging more on the grounds of my opinion, because I held then that in the arguments and opinions in the report of the case of Gilmour, every thing was to be found that was necessary for the sound decision of the cause. And upon reconsidering that report, with the admirable opinion of the late Lord Meadowbank, in which the Lord President, the late Lords Polkemmet, Newton, and Robertson concurred, not to mention the high authority of my brother on my right hand (Lord Glenlee), I do maintain that there is to be found in it the basis of every thing that has since been urged in the late elaborate discussion of the question, taxed as the abilities of the bar and the bench have been in regard to it.

If, then, a case, after having been argued by the first counsel at the bar, so well considered and so solemnly determined as that of Gilmour, and which has universally been ever since held to have settled the law in that department, and has been repeated, as it certainly was by us in the case of Straiton, as I find from my notes, and so long acted upon by the country at large, is to be departed from and overturned, merely because the whole Court was not then consulted, or an affirmation of it pronounced on appeal, it may well be asked, Where is there security for any of the legal rights of the people of Scotland?

Lord Glenlee.—I am one of the number of the judges who concurred in the decision in Gilmour's case; and if I was satisfied of the soundness of that decision then, I am still more so now, from the able argument that has since been laid before us. I am clear as to the propriety of adhering to our former decision.

Lord Meadowbank.—As I, upon a former occasion, stated my opinion, it would be a waste of time to enter into the matter now. I concur in the opinion of the consulted judges; but I would not be doing justice

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to myself if I were not to add, that I never read a more able and satisfactory argument, or one which more exhausted the subject, than in the case for the Marchioness of Chandos.

Lord Medwyn.—I am in the peculiar situation of not having previously had an opportunity, as all your lordships have had, of giving any opinion in this case. I reported it at once from the Outer House, without even hearing counsel in the cause, as I was told it was intended to argue the point upon principle, to contest the decision of Little Gilmour's case, and call for a judgment in the last resort. Your lordships, along with my predecessor in the Inner House, Lord Cringletie, pronounced the decision which was appealed from, and then delivered your opinions. When the case came back for the opinions of the whole Court, I had in the meantime become a member of the Division, and not being one of the consulted judges, had it not in my power to join in their deliberations nor subscribe their opinion, but was under the necessity of studying the case, and forming my opinion alone, and unassisted by those mutual consultations which take place on these occasions. I accordingly studied the case in the vacation, and drew up my opinion before I had seen the opinion of the consulted judges, or even knew of their unanimity. Upon seeing that opinion, as I concur in every word of it, I was much inclined to content myself with simply announcing that I acquiesce in it, and indeed for some time I had determined to do so; but, on farther reflection, lest it should be supposed that I assented merely from the weight of authority, without due consideration, or the necessary study in a case remitted from the House of Lords for the deliberate opinion of the whole Court, I am induced to request permission to occupy somewhat of your time, when I submit the opinion I have come to (and I am sorry to say I have not been successful in making it a brief one), after a very patient examination of the authorities; and I only hope, seeing I profess my entire assent to every word in the opinion of the great majority of the consulted judges, that nothing that I may say shall diminish the effect which that opinion ought to have in the ultimate decision of this case.

The parties have, in their pleadings, discussed at some length the origin of collation between heir and executor, and its introduction into our law. But, like other points in our legal antiquities, the materials for elucidating the inquiry are few, and some of doubtful authenticity; and, in truth, any such inquiry is of little practical value as a guide for the decision of the present question, nor if it were hujus loci to discuss it am I competent to do so; but it may reasonably be assumed that the privilege of collation is a consequence of the law of primogeniture, and that primogeniture was introduced among us along with the feudal system. We may conjecture, that prior to this the Saxon laws which prevailed in the southern district of Scotland were gradually introduced into other parts of the country, and that land was then divided equally among the sons, to the exclusion of the daughters, as it was in England by the Anglo-Saxon law. The feudal law did not exist in England in a complete state till the conquest; and it was probably received among us, and gradually extended throughout the country, from the example

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of our neighbour; for it sprung up among us with that peculiar feature, unknown to the feudal law of Lombardy and the other feudal states of Europe, which had been adopted in Normandy, and transplanted at once into England,—the law of primogeniture, by which the eldest son succeeded to the whole feudum, which he held of the superior for the performance of the feudal services, to the exclusion of the other sons. (Giannone Ist. di Napoli, L. 11. c. 5. § 1. Craig, L. ii. D. 13. § 31.; Hallam, vol. i. p. 186. 197. 201.) At first, probably, and till this right was fully recognized as the privilege of the eldest son, we may conjecture that what is stated to be “consuetudo in burgis Scotiæ de quo non extat memoria in contrarium” was the rule throughout the country at large, that the eldest son had the same portion of the moveable goods of his father as the other children, with the addition of the heirship moveables. (LI. Burg., c. 124. 125.) But when it came to be firmly settled that the eldest son took the whole heritage, custom seems to have introduced it as a reasonable and equitable consequence (for we have no statute either for the one or the other), that the moveables became the portion of the younger children, which it will be afterwards seen came to be the rule in burghs also; so that finally, if the heir was named executor, he was considered in the same light as a stranger, and had the privileges of such. (Stair, b. iii. t. 8. § 53.) As with us, not merely the landed proprietor's or baron's eldest son was his heir, but the beneficed clergyman and the burgess enjoyed the same distinction, it would probably happen in so poor a country as Scotland was in ancient times, that in the case of the two latter classes, rather than in the succession of the baron, the eldest son would sometimes find his a less lucrative succession than if he shared his father's succession equally with the younger children. To obviate such an inequality, the doctrine of collation was introduced by the Church Courts, and perhaps first in the succession of churchmen, from considerations of equity, in the same way as in other instances they adopted rules of equity to soften the strict provisions of the common law; for the churchmen, in their judicial capacity, were the great masters of equity in those times. Of course, the same privilege would be extended to heirs of barons and burgesses also, and hence it came to be a rule of our law, that the heir, being one of the next of kin also, was permitted, in the case of intestate succession, to claim an equal share in the moveables, provided he contributed or collated the heritable estate, to which he succeeded as heir to his father or predecessor, to whom he and the other children were alike next of kin, and in which estate his said father or predecessor was vested. This wa early the rule with us, and perhaps it may be illustrated by referring to a statute of Robert III. c. 35. in an analogous case, de collatione hæreditatis divisae inter plures sorores, the earliest notice of the term collation, I believe, in our law. The discussion related to the division of heritage among heirs portioners, where a daughter had got a portion of land from her father in his lifetime; and as collation had been introduced by the Church Courts in questions within their cognizance, that is the moveable succession, and was merely consuetudinary, as it had probably not previously occurred to be considered in the Civil Court how

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far it was applicable to any other case, the controversy, arising of course under a brieve of division, was therefore referred for determination to the King, who thus states the argument for the party wishing to exclude the necessity of collation:—

“Quod non est de hæreditate patris sui; unde pater suus non fuit saisitus tempore mortis suæ.”

Hence we may conclude that it was then admitted law that the father being infeft at the time of his death, and the heir then taking up the succession from him, was the criterion which rendered the heir bound to collate, when he claimed a share of the moveables.

But the obligation to collate has not been confined to the heir of line when he takes the estate by service in that character; and it is admitted, that to obtain a share of the moveable succession with the other next of kin, the heir of line must collate, although he holds the estate præceptione hæreditatis, or as disponee mortis causa, or although he succeeds in virtue of an unaltered destination by the deed of a remote ancestor, or under a marriage contract. It is contended, however, that if the heir of line succeeds to and takes a strictly entailed estate, he can claim a share of the moveables without being obliged to collate, on the ground that he has not succeeded, has taken nothing by the death of his predecessor, but succeeds by the will of a remote predecessor, whose heir of line he may not be, at all events does not take in that character; for it is said to be highly anomalous, and irreconcileable with any sound principle, to call upon one who takes no benefit as heir of line, but who succeeds in another character altogether, to bear a burden applicable only to the heir of line. But it is obvious that this difficulty does not affect the case of an heir under a strict entail alone; it applies equally to the case of an heir male taking the estate under a simple destination. He also takes in virtue of the deed of the original granter of the disposition; he owes nothing to any act of the immediate predecessor to whom he serves heir, and it may be equally said that it is in form only that he can be considered as his heir. Yet, as already observed, in this case it is not disputed that collation applies. It may be difficult to assign a sound principle, or any principle at all for this; and perhaps we must rest satisfied with the fact itself, and the probable reason which engrafted it upon our practice. Mackenzie (Works, vol. ii. p. 488.) in his Treatise on Taillies, says, that in the noted case of the Earl of Callander v. Lord John Hamilton, “The Lords thought that the heirs of taillie were una et eadem persona cum defuncto,” which is also Craig's opinion (Lib. 2. D. 13. § 27.) as well as that of Stair and Erskine, (Ersk. b. 3. t. 8. § 51.) as to a feudum novum seu masculinum; and accordingly on this principle it was held that “heirs of tailzie and provision are liable universally, in suo ordine, for the debts of the deceased, and not barely to the extent of the succession.” Indeed, with our feudal notions and preference of male succession, this was natural enough. In the direct line a destination to heirs male gave the estate to the heir of line, and even when it carried the estate past the heir of line to a hæres factus, it was natural enough that he should be viewed in the same light as the heir he had superseded. Now, this being the light under which such heirs were viewed, when it happened that

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there was no heir of line to limit and qualify the effects of this universal representation, and when they themselves had the character of heir of line, and would have taken the succession as such, is it at all to be wondered at that they should have been held liable to fulfil this condition of collation in favour of the younger children, if they claimed any of the privileges of heir of line? The heir male, by succeeding to the heritage, is excluded from any share of the moveables, and if he claims a share, he uses a privilege competent to him as heir of line, and it is natural that this should be subject to the same burden as in the case of one having the character of heir of line, and no other; and the circumstance mentioned by Mackenzie (vol. ii. p.484.), that “tailzies in favour of heirs male are now more ordinary than tailzies in favour of heirs whatsomever,” probably confirmed our judges in applying this burden in the case of the heir of line, who took the estate not in that character, but as heir male or of destination, from the evident hardship upon the younger children, if they were obliged to surrender a portion of their scanty funds to their elder brother, who was already amply provided by his succession to the whole landed property of their father. But whether this be the reason or not, it is admitted that collation applies to the case of an heir under a simple destination to heirs male, when he is also heir of line and one of the next of kin.

Now if, instead of succeeding under such a deed, the heir of line succeeds to his father or predecessor as heir under an entail, which effectually prohibits alienation and the other modes, of disappointing his succession, why should this have any influence on the privilege of the younger children to call upon the heir to collate, if he claims a share of the moveable succession?

It does not appear that when the act 1685 sanctioned strict entails, so as to secure the estate of a father to his son free from the claims of creditors or purchasers, it could be contemplated that it was in any other way to affect the interest of the heir, and still less of the younger children, either to deprive the heir of his right to participate in the moveable succession, if he found it for his interest to do so, or, on the other hand, to authorize him to claim a share without collating or contributing, if not the estate as a fee simple, at least the value of his succession. That the predecessor had only a restricted right in the estate, and not the fullest powers of property in it, does not deprive him of the character of proprietor: he is vested in the estate—he is infeft as fiar, and not as life-renter—his right in it can be adjudged from him only by an adjudication of the lands themselves, not of his life interest in them—on his death they fall into the estate of his hæreditas jacens, till they, the lands themselves, are taken out of it by the service of the heir to him; and the heir further proceeds to vest himself with the estate in the same manner as if it were an estate in fee simple, that is, by service to the person last infeft. In so far, then, as the heir takes these lands, he takes them by succession to his father or predecessor, to whom he is heir; and there seems to be no principle for any distinction as to collation between the case of the

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predecessor having the power of disappointing the succession, or not having such power. Collation was fully recognized when the proprietor had no such power. It was necessary even in 1672 to provide that the superior was bound to receive an adjudger as vassal, and a voluntary purchaser could not compel this till 1748. A proprietor dying minor cannot alienate his estate, and the heir must succeed and would succeed as heir of investiture; it may be in virtue of the deed of a remote ancestor, whose heir of line he may not be, yet collation would be necessary before such heir could claim a share in the moveable succession of the minor with the other next of kin.

In the case where the proprietor might have altered the destination, but has not done so, it does not seem to be the ground why collation applies, because it may be held that the estate comes to the heir by the forbearance or implied will of the predecessor: no such reason is assigned in any of our law books, and the law has not said that the heir is to collate only what devolves upon him by the will or forbearance of his predecessor, but what comes to him by succession on the predecessor's death, and in which he was vested, what, in short, “he succeeds to as heir” to him.

Hence the heir claiming the moveables may not be the heir of line of the original vassal, or of the maker of the destination, or of the entail; it is enough that he is the heir of line of the person last vested with the estate, and, succeeding to him as heir by service, claims to share his moveables with the other next of kin. For nothing but the entailing clauses prevent an heir of entail from being liable by representation for the debts of the preceding heir, and if the ceremony of recording be omitted the entailing clauses will not protect him from this liability to the creditors of the preceding heirs, (Earl of Rosebery, 22d June 1765,) at least in valorem of the estate, (Baird, 15th July 1766,) so that it seems of no consequence that he succeeds independent of the will of his predecessor: he takes in the character of his heir, and must be liable in that character as his representative, wherever the entailing clauses do not protect him.

It must not be supposed that any difficulty arises from the circumstance that the Court, in the case of Baird, 16th July 1766, did not hold the heir of tailzie liable universally, but only in valorem of the estate, adopting the doubt of Dirleton and opinion of Stewart, instead of the opinions of Craig, Mackenzie, Stair, and Erskine; for still the heir of tailzie, when effectually fettered, is considered as eadem persona cum defuncto, although not liable universally, proceeding on Stewart's view of his character, that it is similar to that of an heir entered cum beneficio, a privilege recently introduced in favour of heirs, the estate itself being held equivalent to the inventory. So that he still represents his predecessor as his heir, although the effect of the representation is limited; and the same reason exactly applies in this case, for making such an heir, who is also heir of line, collate, as if the representation were universal. His representation as heir still affects the estate which he is called upon to collate, although it does not go beyond it.

In truth, it arises from the view of this character of an heir of entail

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taken by our law that the clause as to making up titles, upon declaring an irritancy of the heir by contravention, was introduced into the act of 1685. The heir pursuing an irritancy, or succeeding on an irritancy being declared by a substitute, although he succeeds, in the strictest sense of the word, in virtue of the entail, and neither by the will nor for-bearance of his predecessor, yet, if he made up titles by service to the contravener which, by feudal forms, he must have done, would have been liable for his debts and deeds as heir served to him, had not the statute authorized him to serve to the person last infeft, who did not contravene. There was no other mode of preventing that representation and its consequences, incurred by an heir of entail serving heir to his predecessor in virtue of the original deed of entail, when he is not protected by the entailing clauses. Now, what is the protection these clauses were either intended or can possibly be supposed to afford to the heir? they are to protect the estate from the claims of creditors and purchasers or disponees; and how can they then be extended so as to affect the interest of the younger children, and deprive them of their right to insist on the heir collating? The law must always favour that claim where the heir is insisting to share with the younger children that from which his inheritance as heir excludes him, and the entailing clauses are in no respect directed against any act of the heir necessary for fulfilling this condition of collation. Indeed, in applying the doctrine of collation to the case of an entailed estate, I have never thought it an argument of any weight, in his favour at least, that an heir of entail cannot collate or contribute the estate itself. It might afford a good objection against his participating in the moveables, since he could not fulfil the requisite condition by contributing his share of the father's succession; but surely this cannot exempt him from collating as much as he can, if the law shall hold that to be sufficient. He can always contribute, I will not say his life interest in the estate, but the value of his succession, the yearly rents; or, on the principles of annuities, the value of this may be computed at once; and to call upon him to collate this value is giving him all the advantage he can claim as succeeding to an entailed estate. And I know of no sufficient interest in the younger children to maintain that they will not be satisfied with this, but must have the heritable estate carved out into portions and given to them. In truth, there can seldom be any practical difficulty. The heir has as little occasion to communicate the estate itself to the younger children, provided he contributes its value, as in ancient times the heir of a feudum or burgage tenement had. The heir is always to benefit, otherwise he has no interest to collate. He is to get a portion of the moveables, in addition to the heritage; so the collation of the heritage is in many, perhaps in most cases, effected by a simple arithmetical computation; and there can scarcely exist any interest in the executors to insist on an actual transference of any portion of the real estate. That the heir will retain pro tanto, whether he can alienate it or not, and he will obtain the surplus from the moveable estate to make his share of the succession equal to that of the other children.

It is said, and it is true, that an heir of entail succeeds by the will and

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destination of the maker of the entail. But what is the entailer's will? not to constitute a series of life-renters, whose interests expire at their death, and are not taken up and inherited by their successors—who are, in short, independent of each other, and dependent solely on himself. The law of Scotland gives no such power to a proprietor. Wherever there is a life-rent there must be a fee somewhere. But the law has allowed the entailer, and his will in the present instance has been, to constitute a series of heirs, each holding the fee of the property in succession, and each in succession taking it by service as heir to the one last infeft, and of course representing him in every act and deed connected with the estate, except in so far as protected by the entail. In succeeding, therefore, though by the will of the entailer, he must be liable to all the legal consequences of the exercise of that will in his favour; he takes up the fee that was in his predecessor, and is subject on that account to the same liabilities as any other heir of provision, which the prohibitions of the entail do not exclude. Indeed, if it be not inherent in the character of entailed property to exclude the necessity of collation, I do not know how an entailer could proceed if he wished to exclude this condition, and yet give each heir in succession a share along with the other next of kin in the moveable succession of his predecessor in the estate. He could, no doubt, prevent any of the heirs from claiming a share of the moveables, because he could make it a condition of the entail that no heir should do so; but how could he provide that the heir might share in the moveables without collating? These moveables are not his estate, and do in no respect belong to him, so as to entitle him to regulate the succession to them. They are the property of the deceasing heir, and may have been the fruits of his industry or economy, and the entailer can have no power over them. It is only his own estate, the succession to which he can regulate by entailing clauses.

It has been further argued, that, in this question, the Court attends more to substance than to form, and that in form only it can be said that an entailed estate is taken up as the estate of the predecessor by the succeeding heir; and, in proof of this proposition, reference is made to the case of lands taken præscriptione hæreditatis, which must be collated, although they were given by disposition in the lifetime of the father, and not succeeded to as heir. But this instance seems insufficient to prove the point for which it is adduced. The very name shows that it is the inheritance of the father which the son takes; that he gets it because he is heir to it, and would succeed to it at his father's death. Hence he is liable to his father's prior creditors for its value; and most justly it seems to have been thought as unreasonable that the rights of the younger children should suffer by the anticipated right of the heir, as those of the creditors of the father; or that the eldest son should get quit of his obligation in the character of heir in affecting the interests of the younger children, while it is regarded with creditors. But can a stronger proof be given that form is, in this matter, at least as much attended to as substance, when it is founded on legal principle, that if the father never was infeft, although he may have possessed the estate

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for twenty or thirty years, and his son makes up titles, as he must do, to the person last infeft, he may claim a share of his father's moveables, without collating the heritage which he did not take by feudal forms, as an inheritance from his father. (Spalding, Dec. 11, 1812, in 1 Bell, 102.)

The application of the principles on which collation rests to the succession of an entailed estate did not demand the consideration of the Court till the case of Little Gilmour. It could only occur after the act 1685, and it obviously must happen but in rare instances that it can be for the interest of such an heir to collate. I conceive that, in that decision, the rules which had been observed in analogous cases with great consistency were correctly followed out, and I have already anticipated the grounds on which this opinion is founded.

The cases on collation are not numerous in our law books. We are not to look for them at first among the records of our civil courts, nor perhaps in the earliest institutes of our civil law; for this matter, at an early period, fell under the cognizance of the ecclesiastical courts. Without laying much stress on the passage quoted from the Reg. Maj. in the case of Mrs. Anstruther, it appears, from the laws of William, c. 22., that the church had then a jurisdiction as to testaments and intestate succession; and, in the canons of the Scottish Church, c. 50., enacted in 1242, among other delinquents directed to be excommunicated are “impedientes ordinarios, quominus de bonis ipsorum decedentium ab intestato, secundum consuetudinem ecclesiæ Scoticanæ, rite valeant ordinare.” (Hailes, vol. iii. p. 192.) And, in a provincial council, held at Perth in 1420, the clergy of each diocese were required to report on oath what was the practice as to the confirmation of testaments; when they unanimously reported, “that the bishops had been in the constant practice of confirming testaments, and of naming executors to those who died intestate,” and then the order of procedure and distribution is set forth. (Hailes, vol. iii. p. 249.) This uniformity shows a well-established practice proceeding from an authoritative source, and referring to ancient practice. The doctrine of collation was fully established in these ancient times; but the destruction of the records of our ecclesiastical courts, at the tumultuous period of the Reformation, leaves little hope for much information from that quarter. I know of one such record only which has been preserved, the volume of decrees of the official of St. Andrew's for the archdeaconry of Lothian, from 1500 to 1551; but I do not know if it throws any light on this question, whether the vassal ever objected to collate his feu, when the predecessor had as little power to alienate it as in the case of a strictly entailed estate, and when the heir succeeded in virtue of the grant of the superior, the original granter. It appears, however, by the case of Law in Balfour, that this doctrine was, at some early period, firmly fixed in our practice. It struck me as singular that this question should have arisen and been decided at this time in the civil court, and it seemed as if collation only required the heirship moveables to be collated. But these points were cleared up on examining the decree itself. It appears that the parties interested in the succession of

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Steven Law, a burgess of Edinburgh—that is, the widow, two sons, and a daughter—had entered into a reference to arbiters, who pronounced an award, estimating the property at a certain amount, and assigning certain sums to the widow and each of the three children as their portions of the succession. Some years afterwards the younger son, Alexander, designed writer to the signet, raises a process of reduction of this award, citing as a defender Andrew, the son and heir of Robert, who was the eldest son and heir of Steven, complaining of the award on the head of minority and lesion, and craving to have it set aside, and that the defender should be decerned by the Court to pay the sum he claimed as his proper share of his father's succession. The reduction was of course raised in the civil court, the ecclesiastical court not being competent to reduce an award or decree-arbitral. The minority is stated to be, and is so found by the Court, That, at the time of the reference and award, “Alexander was a pupil proximus infantiæ of nine or ten years, and had na tutor or curator, whereby he had na persoun nor power to transact;” and the lesion is made out, because the arbiters had undervalued the property; and further, had given a portion of the moveables to the eldest son, who had succeeded as heir. The defender did not dispute the law of collation as here laid down—evidently holding it unquestionable—just as little as he did the plea of minority; but he pleaded this defence against the application of the doctrine in this particular case, that at the time of his father's death he was not the heir, as he had an elder brother at the time; but the answer was held satisfactory, that this eldest son died soon after his father, before he had entered heir to his father, or got sasine of his lands, or received heirship; and further, died before the goods were divided; so that Robert came to be heir to his father when the children took up the succession, and it was therefore held that he could not claim a share in the moveable succession without collating his father's lands. This is the subject of the decision reported by Maitland, then a judge on the bench, 13th July 1553 and 24th April 1554, M. P. 2365. The decree bears, accordingly, that the award was set aside on this ground, that the third part of the free funds should have been divided into two shares only, because for four years before Robert was heir and successor to his father, and “enterit to his landis, heritages, and airship guidis, and therefor, be the lauchfull consuetude and use of our said burgh of Edinburgh, lauchfullie and continuewallie observit and kepit past memor of man, burges airis of the samen aucht nought to haif ony barnis part of geir nor falls them by (besides) thair airschip guidis and heritage, without thai wald renunce the samen, and cast it in, and concur with the remanent of the barnis equallie thereintill.” The award is set aside on these grounds; but the Court does not proceed with the adjustment of the pursuer's claims; that belonged to the ecclesiastical court, but “assoilzies the defender, and decerns her (the cause had been transferred against the sister of the original defender) quyte therfra, as it is now libellit, reserving to the pursuer his action for persute therof before quhatsumever judge he pleases, as accords of law.”

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The examination of this decree is valuable, because it shows that this matter was still within the province of the ecclesiastical court, and accounts for the few notices of this doctrine in our civil courts; and it is a declaration of the law past memory of man, that in the case of the heir of a burgess, he was excluded from a share of the moveable succession, unless he collated not merely the heirship goods, but the lands and heritage also “to the which he succeedit throu the deceis of the said umquhile Stevin, his father.” (How Balfour has omitted to notice that the heir must collate lands as well as ‘airship guids,’ I know not. Maitland includes both in terms of the decree itself.) This description of the succession to the heritage, which infers the necessity of collation, is important, when it is considered, that the heir making up titles more burgi in fact takes the subject in virtue of the original grant, but still he succeeds through the decease of his father.

But the decision would be still more important in the present case if a burgess at that time had not the power of alienating his heritage, except of his own acquisition, unless of necessity for debt, after offering it to his nearest heirs, and when the necessity was proved before twelve of his neighbours. This was once the law even as remodelled in 1395 (LI. Burg., c. 45. 125.); but I will not take upon me to say, because I do not know the fact historically, that this continued to be observed down to 1520, the period of Steven Law's death,

As collation was originally consuetudinary, and introduced by no statute, and as the question occurred relative to the succession of a burgess of Edinburgh, the pleading of the successful party in the case of Law most correctly founds upon this doctrine as a consuetude of this burgh. This was all that was necessary. But the notice of this decision, both by Balfour and Maitland, contemporary lawyers of the highest character (the latter then a judge on the bench; the other eminently qualified for the task for which he was selected, of drawing up, or superintending the drawing up, the Practicks, or digest of our law, by having been official of Lothian before the Reformation, and one of the first commissaries of Edinburgh after it; also a Judge of the Session, and finally its President,) shows that both these lawyers recorded this decision to sanction the doctrine of collation, which they then recognized as a general rule of the law of Scotland.

If, a century afterwards, Dirleton (v. Collation) really seriously doubted whether the heir was bound to collate more than the heirship moveables (and he may have been misled by the way in which the case of law is given in Balfour), these doubts must have been speedily resolved by the discussion this subject underwent in the cases of Buccleuch, 1677, and Murray, 1678; and Mackenzie, Stair, Stewart, Bankton, and Erskine distinctly announce the doctrine of collation as we now hold it; in truth, we may safely rest the law of collation upon the authority of their opinions and the decisions of the Court pronounced in their time and since, which are singularly uniform and consistent—a very sufficient foundation for any doctrine of our common law—without seeking the aid of any more ancient authority.

For, as to the opinion of Mr. Erskine (B. 3. t. 9. sec. 3.) where he

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says it is only the legal heir, or the heir ab intestato, who is obliged to collate the heritage, I am inclined to think his meaning has been misunderstood. It may not be very clearly expressed, for the work was posthumous, and did not receive the learned author's last corrections; but it seems to me that he means only that it is the heir alioqui successurus who is bound to collate, which is quite true; and he does not say that the heir at law, or he who would be heir ab intestato if there were no destination, would be relieved from the necessity of collating if he takes by virtue of a destination. Indeed, if this passage is construed in the way attempted to be done, it would exclude from collation all estates under an investiture, even to heirs whatsoever. This certainly is not the law he lays down. He then contrasts the case of an heir with the case of heirs portioners, who, in relation to the moveables, are altogether in a different situation from an heir succeeding either at law or by destination to the heritage, for the moveable estate, “by legal succession, descends equally to all the daughters;” and if the father settles his landed estate upon the eldest daughter, having full power so to do, she takes it in virtue of that settlement, without affecting in the smallest degree her legal claim to share the moveables with her younger sisters. The case of the heir is quite different, because he has no legal title to the moveables, if he takes the landed estate, unless he collate. I admit, however, that Mr. Erskine's opinion in the same section has not been adopted by the Court, where he says that the son should have the same privilege that his father would have had; but it is there only that he seems to have given an erroneous opinion on a case which had not then occurred. But even were it true that Mr. Erskine's opinion was as has been supposed, however high I rate the opinion of that learned author, I am not inclined, on a point of law which had not then occurred for decision, to put it in competition with that of the late Lord Meadowbank and first Lord Newton (I speak only de mortuis), when called upon to consider and adjudicate the very case.

I have no intention of going farther into the decisions as to collation. I have already observed, that they are uniform and consistent, and they support this proposition, that an heir of provision or tailzie, being also heir of line of the preceding heir, can claim a share of the moveables with the other next of kin only by collating that estate which would have devolved upon him, which he would have taken as heir at law, and to which the deed providing it to him has only more effectually secured his succession.

I believe that in England there is something like this doctrine of collation among co-parceners at common law, and in the case of moveable succession by the statute of distributions; and that the succession to an estate tail is not, in this matter, attended with the same consequences as with us. (Blackstone, vol. ii. p. 191 and 517.) There may be sufficient reasons in the varying circumstances of the two countries why the burdens under which the heir is entitled to share in the moveable succession should not be the same in both; and in the different distribution of wealth in the two countries perhaps it may not be difficult to find a solid reason for this difference. But be this as it may, and even if the distinction were purely arbitrary, it is of much more consequence that the rules of suecession

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should be fixed, and steadily adhered to, when once deliberately laid down, than that in all respects they should be assimilated in the two countries. And, upon the whole, it appears to me that the application of the doctrine of collation in the case of an entailed estate was correctly made according to the principles of our law, when the question occurred in the case of the succession of Mr. Little Gilmour; and that it could not be deviated from now without adopting a view of the character of a proprietor of an. entailed estate totally different from what is recognized by our law, and unnecessarily aggravating the inequality which the law of primogeniture has introduced among us against the interests of the younger children.”

¹ This case involving the same question of collation, arising out of the succession to the estates of the Marquis of Breadalbane, had a similar result as the present one, and has been appealed.