United Kingdom House of Lords Decisions

The following case arises out of the appellant claiming an estate, as heir of the deceased James Stewart, in the following circumstances;—The deceased James Stewart, having left no issue, William Richan was habit and repute his heir. The deceased had himself acknowledged this to all and sundry. And although this connection was through the appellant's mother, Mrs. Jean Stewart, yet it was traced up until the deceased and he met in descent from one common ancestor. His mother was daughter of Robert Stewart of Eday, son of Captain Stewart of Eday, who was the son of Sir James Stewart of Tullos, third son of Robert Stewart, first Earl of Orkney, the common ancestor of both. In consequence of the deceased's blindness, and when his sister died, the appellant had been sent for to carry her head to the grave; and, by the respondents, he was appointed to do this last office to the deceased himself.

In these circumstances, he, immediately after the death, procured himself served heir to the deceased—his claim setting forth, “that I am nearest and lawful heir in general to the said James Stewart, my cousin.” He was served heir accordingly by the verdict of a jury.

But it then appeared that the respondents had obtained from the deceased, a short time before his death, a trust deed, conveying his whole property, amounting to £6000, for pious uses, and were actually in possession. This trust-deed having been hurriedly executed, wanted the necessary clauses for vesting the property, and they were in the course of applying to the Barons of Exchequer for a gift of ultimus hæres, when the appellant brought the present action of reduction to set aside the trust-deed; which was met on the respondents' part by a reduction of the appellant's service, which being remitted of the other, Lord Meadowbank then ordered the defender (appellant), in the reduction at the instance of the trustees, “to give in a condescendence of the facts he held himself in a condition to prove in support of his service.” Regularly vested with the character and status of heir, by the verdict of a jury, in his service, he at first thought it unnecessary to adduce any further evidence, the legal presumption being (as he maintained) in his favour, until the contrary was proved by some party having a better title. But afterwards a condescendence was given in.

Mar. 10, 1798.

Lord Meadowbank pronounced this interlocutor:

“Finds that the two separate claims of propinquity condescended on by William Richan, in support of his service challenged, infer, though proved, only relationship to the defunct, which in that by Jean Richan, the grandmother of the defender, never affords by the law of Scotland any right of succession whatever, and in that by Margaret Richan (by mistake for Stewart), only affords it when a service to her descendants would carry the succession, which, in the present case, would be totally nugatory: Finds, That in order to support the service, it was necessary to condescend on and prove a precise line of propinquity, instructing an heritable jus sanguinis in the person of the defender; and as his attempt so to do appears to have failed, therefore reduces the said service, without prejudice to the defender's taking the depositions to lie in retentis.”

Nov. 12, 1801.

A mistake appearing in this interlocutor, he petitioned, stating that it was not through his grandmother, nor through Jean Richan that he claimed relationship, but through his mother, Mrs. Jean Stewart, descended from the same family of Stewarts with the deceased himself; and craved to be allowed a proof accordingly. A proof was allowed. Upon which the Lord Ordinary pronounced this interlocutor:—

“Being of opinion, according to the finding of the interlocutor of 10th March 1798, that a particular degree of propinquity must be made out to entitle a claimant to be served heir to a defunct; and being also of opinion, that if the defendant (appellant) had any expectations of further proof by writing, or any ground of complaint against witnesses not answering properly questions put to them as havers, application for remedy should have been made to the Lord Ordinary or the Court during the long and repeated indulgence he has enjoyed; and, at any rate, before the circumduction of the 16th January last was acquiesced

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in and allowed to become final; and that, in like manner, he should have applied for authority to open the depositions in retentis before quoting or founding on them. Finds, That the defendant has still failed to make out any precise degree of propinquity betwixt him and the deceased, to entitle him to be served heir to the defunct by the law of Scotland; and that, therefore, his service was originally irregular and void, and adheres to the said interlocutor. Repels the objections to the pursuers'(respondents') title to pursue the reduction, in respect their title is sua natura, probative and prior to the service.” ^*

Jan. 28, 1803.

On reclaiming petition, the Court at first altered this interlocutor; but afterwards sustained the reasons of reduction of the service, in respect the proof did not support the condescendence of his pedigree. On further petition, the Court adhered.

Against these interlocutors the present appeal was brought to the House of Lords.

Ross v. Aplianby, F. C. July 3, 1792. vol. X. p. 459. Affirmed on Appeal, July II, 1794. Vide ante, vol. iii. p. 365.

Pleaded for the Appellant.—This is not a competition of brieves, the appellant being regularly possessed of the character and status of heir by his service, the question is not, Whether he shall be vested with, but whether he shall be divested of that legal character by the respondents, who cannot show that they have a better title as heirs, who do not prove that the defender is not the heir, and do not say that any other is a nearer heir, and therefore have no title to challenge that vested right. A service affords evidence that there was consanguinity, or inheritable relationship between the appellant and the deceased; and the retour bears the appellant to be legitimus propinquior hæres Jacobi Stewart

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* Note by Lord Ordinary.—“The Ordinary cannot find evidence that the Stewarts in How were the Stewarts of How, and descended either of Colonel John Stewart, or his brother Captain Robert of Eday. He would have held repute sufficient evidence, had it been precise and decided; but it does not appear to be either the one or the other, so as to entitle a juryman to serve the defender as any particular relation to the deceased, or as either one particular relation or another particular relation. However probable, therefore, it may be that the defender stands in one inheritable degree of propinquity or another, the Ordinary cannot find such a probability that the law would recognize as proof from habit and repute, nor does he think that habit and repute would be sufficient to serve, unless applicable to a precise degree of relationship.”

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