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Scottish Court of Session Decisions >>
Jean Wallace v Sir Thomas Wallace. [1702] 4 Brn 526 (10 February 1702)
URL: http://www.bailii.org/scot/cases/ScotCS/1702/Brn040526-0020.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Jean Wallace v. Sir Thomas Wallace
Date: 10 February 1702
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The deceased Sir William Wallace of Craigy, in his contract of marriage with Dame Jean Menzies, daughter to Pitfoddels, provides his estate to his heirs-male; and, in case there shall be only one daughter of that marriage, his heir of tailyie is obliged to pay her 20,000 Scots. This case existing, Jean Wallace, the only child of that marriage, pursues Sir Thomas Wallace her uncle, and the apparent heir-male and of tailyie, as lawfully charged to enter heir, to pay her the foresaid £20,000, with annualrent, after her age of twelve years.
Alleged,—No process against him as heir-male, till the heirs of line be discussed; which is the pursuer herself, and her sister Margaret by another marriage; and wherever remoter heirs stand obliged to pay a sum, the lineal heirs are always to be first discussed.
Answered,—The pursuer has already insisted against Margaret, the other coheir, and got a renunciation from her, and none will say she ought to discuss herself; likeas he ought to condescend upon some discussible subject and estate to which they may fall, else the calling them is sufficient. And he has no prejudice; for he can easily liberate himself, by renouncing to be heir, seeing no other passive title is insisted on; and if he refuse to give in a renunciation, he ought to be liable.
The Lords decerned, unless he would renounce; and found he ought to do it, without any farther discussion of the heirs of line.
