Scottish Court of Session Decisions

Subject_1 SUCCESSION.
Subject_2 SECT. III.

Succession a testato.

Mrs, Mary Hay
v.
Anna Crawford

Date: 16 November 1698
Case No. No. 28.

One having a tack of teinds to himself and heirs-male granted a sub-tack thereof, taking the rent payable to himself and heirs whatsomever. Heirs whatsomever interpreted to be heirs-male.

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Mrs. Mary Hay and Anna Crawford being both creditors to the deceased Mr. Philip Nisbet, they both pursued his representatives for constituting the debt, and both adjudged a tack of teinds which belonged to Mr. Philip; but with this difference, that Anna Crawford, apprehending the right of the tack did fall to Mr. Philip's heir of line, she pursued Mr. Philip's son's daughter, and obtained a decreet cognitionis causa, and thereupon adjudged; and Mrs. Mary Hay pursued David Nisbet his brother, and obtained a decreet as lawfully charged to enter heir, whereupon she adjudged.

Whitsomhill, the debtor of the teind-duty, pursues a multiple-poinding against them both; in which it was alleged for Mrs. Mary Hay, That she ought to be preferred; because she produced a tack of teinds of the parish where Whitsomhill's lands lay, in favours of Mr. Philip and his heirs-male, with an adjudication against David Nisbet the heir-male.

It was alleged for Anna Crawford: That she ought to be preferred; because, albeit the tack was originally set to heirs-male, yet the tacksman might alter that destination at his pleasure, and provide the same to any other heir, which he had done, in so far as he had set a sub-tack of the same teinds to Whitsomhill, and taken the tack-duty payable to himself and his heirs whatsomever; and Anna Crawford having adjudged that sub-tack per expressum, her diligence was preferable to the diligence against the heir-male.

It was answered: The sub-tack did not alter the destination of the principal tack, because illud non agebatur; but the tack-duty was made payable to him and his heirs whatsomever, which in dubio is understood the heir of line; yet, where the subject of the tack is distinct to other heirs, heirs whatsomever must be understood the heirs of the principal tack, in the same way as an heritor setting a tack of his lands bearing an obligement to pay the tack-duty to his heirs whatsomever, is not understood thereby to alter the destination of the succession of his lands from heirs-male, or heirs of tailzie, but to provide the tack-duty to his heirs, who shall succeed in the right of the lands.

“The Lords preferred Mrs. Mary Hay's diligence against the heir-male; and found, That the destination of the principal tack to heirs-male was not innovated or altered by the sub-tack.”

Fol. Dic. v. 2. p. 401. Dalrymple, No. 4. p. 6.