Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Mrs Anne Arbuthnot
v.
Lieutenant Robert Arbuthnot

Date: 4 July 1758

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The defender was heir, and the pursuer executor, of their brother the late James Arbuthnot.

James Arbuthnot had been served heir to his father in a burgage tenement in Edinburgh, and he was also infeft in an annualrent of 500 merks out of the lands and barony of Creiggie.

On the death of James, the defender being pursued by his sister before the Commissaries, and called on to account for the moveable property belonging to his brother in his possession, insisted that he was entitled to retain certain articles as heirship moveables.

“To this it was objected by the pursuer, That although the deceased had been infeft in a burgage tenement, this was not enough to make him a baron in the sense of the law, so as to entitle his heir to heirship moveables, and it was not alleged that he was a burgess: that supposing an infeftment, in such a tenement, were in the general case sufficient to entitle the heir to heirship moveables, yet in this case the deceased, sometime before his death, had disponed the tenement in question to his sister the pursuer; and that as to the infeftment of annualrent over the estate of Creiggie, the deceased had also been denuded of it before his death by a conveyance in security of a debt which he owed her.

Answered for the defender, That there could be no doubt that the infeftment of the deceased in a burgage tenement entitled his heir to heirship moveables: Mack. Obs. on Act 1474: Stair 3, 5, 9: Bank. 2—292: That the disposition of this tenement in favour of the pursuer, not only contained a power to alter, or revoke, or charge the subject with debt, but also a power to give it away gratuitously, and consequently was truly no more than a donatio mortis causa, which left the granter still fiar of the subject; that notwithstanding such a disposition, the subject would have fallen under James' forfeiture, and that a simple revocation by him would have annulled the pursuer's right without the necessity of James being reinvested: and lastly, As to the infeftment of annualrent, that the deed granted by James to his sister was not an absolute conveyance, but a mere right in security.

The Commissaries found, “That the defender has no right nor title to heirship moveables.”—But the cause having been advocated, the Court, July 4, 1758, “remitted to the Commissaries, with instructions to find Robert Arbuthnot entitled to heirship moveables.”

Lord Kilkerran says:—

“This the Lords thought, on both grounds, that of his having a house, and that of his having an infeftment of annualrent, whereof he was not divested by the assignation on security to his sister.”