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senting their parents in their several generations. Assuming, however, that the No. 146. case should be regulated by the application, or not, of the conditio si sine liberis, as contended for in the argument, I have no hesitation in holding that, on prin-July 9, 1873. ciple as well as on authority, that condition does apply to a case of succession rvine v.
Irvine. like the present. The testator was admittedly in loco parentis. Had the destination been merely to “nephews and nieces” that would have led to the descendants of predeceasers being included, so as to take their parent's share, whether they were of the first or second generation of descendants. This was not disputed in the argument for the second party. But it was ingeniously contended that, because the families of predeceasing nephews and nieces are expressly named, this indicated an intention on the part of the testator that the first generation of descendants only was to be included,—a construction of the words which, though there might be living descendants of a remote degree, would, in a certain state of the family at the time of distribution, have led to intestacy, as, e.g., had all the nephews and nieces and their immediate issue predeceased, and only great-grandnephews and great-grandnieces being alive. But this view is to mistake the effect of the condition si sine liberis, which, when applicable, embraces all the descendants of the parties called to the succession towards whom the testator stands in loco parentis ; and it is also to narrow the true effect and meaning of the very words of this deed in calling the families of predeceasers to the succession.
For these reasons I am of opinion that the first question should be answered in the negative, and the second in the affirmative.
LORD BENHOLME concurred.
LORD JUSTICE-CLERK.—I concur in the judgment. I am not altogether able to frame any very uniform rule out of the decisions on the subject. The important elements in this case are, first, the testator was in loco parentis to the beneficiaries; secondly, it was a share of residue that was bequeathed, and not a specific legacy; thirdly, the term “family” is more comprehensive than that of children," and prima facie excludes delectus personce, and includes descendants.
Lord Neaves authorises me to state that he concurs in the judgment.
LORD NEAVES was present when the case was heard, but absent when it was advised.
This interlocutor was pronounned: "The Lords having heard counsel
on the special case are of opinion, and find (1) that the second
ANDREW & Wilson, W.S. - Morton, Neilson, & SMART, W.S.- Agents.
No. 147. THE LORD ADVOCATE, on behalf of Her Majesty and the Commissioners of
Woods and Forests, Objector.—Sol.-Gen. Clark-Kinnear.
THE EARL OF GALLOWAY, AND JOHN FLETCHER HATHORN, Esq., v. Earl of
Teinds-Locality.- Teinds had belonged to a priory before the Reformation, had never been erected into a temporal lordship, but after the Reformation were held in commendam by laymen until 1612, when they were regularly united to a bishopric. They were inalienable in the hands of the bishop before the submissions to King Charles I. in 1627 and 1628, and fell to the Crown on the abolition of Episcopacy in 1689. Held, in a locality, that these were bishop' teinds in the hands of the Crown and entitled to be postponed to teinds held on
heritable right. 1st Division. This question arose upon objections by the Lord Advocate, on beLord Gifford half of the Crown, to the interim schemes of locality in the conjoined Teind Clerk.
processes of locality of the stipend of the parish of Whithorn. The following narrative is taken from the opinion of the Lord President :
“The Lord Advocate, on behalf of the Crown, objects to the locality, as it has hitherto been adjusted, on the ground that the stipend has been localled on the teinds in the hands of the Crown to the effect of relieving the teinds of the Earl of Galloway, and of Mr Fletcher Hathorn of Castlewigg, which are held on heritable right.
“ The ground of the objection is that the crown teinds are bishops' teinds. Of course that objection lays the burden upon the Crown to prove that they are so in point of fact, and I am of opinion that this onus has been discharged, and the fact established.
“ The history of these teinds can be very shortly stated. The church of Whithorn before the Reformation was certainly a patrimonial church of the priory of Whithorn, and after the Reformation that priory was given in commendam first to one layman and afterwards to another for a considerable time. It was shortly after the Reformation that the heritable rights now claimed respectively by Lord Galloway and Mr Hathorn came into existence. In 1569 the then commendator granted a feu of the ten merk land of old extent, called Mains of Whithorn, and another feu of the five merk land of old extent of Preistrie, these being part of the patrimony of the priory, along with the teinds, the conveyance in each case being cum decimis inclusis. This conveyance led to a mistake, it being considered that it was cum decimis inclusis nunquam antea separatis, which it certainly was not. Now, this conveyance was undoubtedly illegal altogether, and if it had been challenged tempestivè it could not have stood. It has however so stood for 300 years, and it is impossible for the Crown, especially after recognising it by charter of collfirmation, to challenge it now. It must therefore be assumed that Lon Galloway and Mr Hathorn, who are now in right of these feus, bave good heritable rights to their teinds. This explanation is necessary, because otherwise the fact of these conveyances having been granted would be wholly inconsistent with the contention for the Crown that the teinds of Whithorn in their hands are bishops' teinds. From the above narrative it will be seen that the heritable rights to these teinds came into existence before the teinds were bishops, teinds, and when they were the property of the priory and of a lay commendator.
“The grants in commendam continued for some time, and the last was about 1580 in favour of Patrick Earl of Orkney. In 1605 James VI. carried out his favourite scheme of restoring the order of bishops, though it was not actually put in force till 1606. His Majesty was, however, in difficulties how to supply maintenance for his new bishops. While cast
ing about for a source of revenue for the bishops of Galloway, he found No. 147. fortunately that Patrick, Earl of Orkney, had turned traitor, and his estates were forfeited, and among them the emoluments of the priory of, July, 11, 1873. Whithorn. Accordingly in that year, 1605, he granted the patrimony of Earl of
Lord Advocate that priory to Gavin Hamilton, the first restored bishop of Galloway, for Galloway, and his maintenance, but for his life only. Thereafter, on 31st July 1612, he Hathorn. granted the same to William Coupar, Hamilton's successor, for his life also. These grants in liferent would never have made the teinds of Whithorn, bishops' teinds—they were only grants in commendam of priory teinds. But in 1612 an Act of Parliament was passed, which changed the character of these teinds altogether. This Act annexed the priory of Whithorn to the bishopric of Galloway, to the effect that the whole revenue of the priory was given to the Bishop of Galloway for his maintenance. The Act is not in existence, but its tenor and effect are clearly established by contemporary writings. I think, therefore, that the teinds in question became in 1612 proper bishops' teinds, and continued in the hands of the bishops of Galloway as such until the troublous times in 1639. They were again held by the bishop after the Restoration, and finally came into the hands of the Crown at the Revolution in 1689 as bishops' teinds."
The Lord Advocate pleaded ;-1. The whole teinds of the parish, except those held on heritable right, being bishops' teinds in the hands of the Crown, the augmentations ought to be laid primo loco on teinds held on heritable right.
The respondents pleaded ;—2. The objector has no right or title to maintain that the augmentations should have been allocated primo loco on the teinds held on heritable rights, in respect that it has not been shewn that the teinds upon which the augmentations have been localled are bishops' teinds in the hands of the Crown, and the objections ought therefore to be repelled. 3. The objections are excluded—(1) By mora and acquiescence; and (2) by prescription. 4. The objections ought to be repelled-(1) In respect that they are ill founded in point of fact; and (2) That they are untenable in law, and the respondents should be found entitled to expenses.
A proof having been led, which consisted entirely of documentary evidence, the Lord Ordinary (June 22, 1871) pronounced an interlocutor finding “that the teinds of the parish of Whithorn in the hands of the Crown are bishops' teinds, or at all events are church teinds entitled to all the privileges in allocation of bishops' teinds in the hands of the Crown: Finds that in allocating the stipend in the present conjoined processes of locality the augmentations ought to be laid primo loco upon teinds held on heritable right, or at all events the same same should be laid on teinds held on heritable right before any part thereof is laid upon the teinds in the hands of the Crown, and to this extent sustains the objections for the Lord Advocate, and remits to the teind clerk to rectify the locality accordingly: Finds the Lord Advocate, as repreting the Crown and the Commissioners of Woods and Forests, entitled to expenses," &c. *
* “ NOTE.— The questions raised in the present record are—(1) Whether the teinds of the parish of Whithom are bishops' teinds; (2) Whether, at all events, they are priors' teinds, entitled in questions of allocation to the same privileges as bishops' teinds; and (3) Whether, in the present conjoined processes of locality, the said teinds in the hands of the Crown ought to be postponed in allocation to the teinds held on heritable rights. In substance, the Lord Ordinary has answered these questions in the affirmative, and the result is that he has sustained the objection stated by the Crown, and appointed the locality to be rectified.
No. 147. The respondents reclaimed. The Court appointed the parties to lodge
cases. July 11, 1873. Lord Advocate v. Earl of “A proof was allowed, but it consisted entirely of an extensive recovery of old Galloway, and title-deeds, rentals, and other documents, no oral proof being necessary or even Hathorn. possible. The documents raise several important questions both of fact and of
law. The Lord Ordinary will shortly notice the questions which he has virtually disposed of by the present judgment.
*(1) The Lord Ordinary thinks it is proved that the whole teinds of the parish of Whithorn-at least the whole teinds thereof now in the hands of the Crown - were originally priors' teinds. They belonged to the priory of Quhithome. This seems established not only by the rentals of the great church benefices given up in 1561, but by the various grants, presentations, and tacks in the sixteenth and seventeenth centuries, many of which are in process, and specimens of which are printed in the joint print for the parties.
“Whithorn was never, strictly speaking, either a bishopric or a part of the patrimony of a bishopric, and although, as will be immediately noticed, the teinds of Whithorn were made over to the bishop of Galloway, it becomes a serious question whether this grant had the effect of converting what were originally priors' teinds into bishops' teinds. This question of law directly arises in the present case, but in point of fact it can scarcely be disputed that the teinds of Whithom were originally not bishops' teinds but priors' teinds belonging to the priory of Whithorn.
“(2) It seems to be proved that these teinds—that is, the teinds of the priory of Whithorn-were given in commendam to various laic commendators prior to 1605. This is established, for example, by the tack by Robert, commendator of the priory of Whithorn, of 3d October 1572, and by the tacks by Patrick Earl of Orkney, as commendator of said priory, granted in 1591 and 1596. It is true these commendators only held the teinds in commendam and not heritably, and only at most for their lives; but it may not be immaterial that before they were granted to any bishop they were given to laic commendators.
“(3) The said teinds were first given to the bishop of Galloway in 1605, and then only for the life of the existing prelate, Mr Gavin Hamilton. This is proved by the crown grant of 29th November 1605, which bears in gremio that the teinds had come back to the Crown by the rebellion and denunciation of Patrick Earl of Orkney, the last commendator. It is material to notice that the grant expressly bears to be made because the emoluments and patrimony of the bishopric were dilapidated and exhausted, so that Bishop Gavin Hamilton could not therefrom maintain suitable state and dignity. The grant, however, was only for Bishop Gavin Hamilton's life.
“(4) A similar liferent grant was made by the Crown in favour of the next Bishop of Galloway, Bishop William Coupar, dated 31st July 1612.
“ (5) These temporary grants of the priory, including the teinds of Whithorn, were followed, in or about 1612, by a permanent union of the priory and teinds of Whithorn to the bishopric of Galloway.
“ This union is said to have been effected by an Act of Parliament passed in October 1612 ; but this Act is now lost, at least no copy of it can be found. It is referred to, however, not only in various deeds dated very shortly after its pass. ing, but in other Acts, and it is expressly renewed and confirmed by the Act of Parliament of 28th June 1633. Reference may be made to the charter of confirmation by the Bishop of Galloway in favour of Lord Garlies, dated 3d March 1615, in which it is expressly said that the priory of Whithorn and the abbary and monastery of Glenluce and Tongueland, both temporality and spirituality, were united, annexed, amd incorporated with the bishopric of Galloway by the Act of October 1612, to remain so in all future time.—(See also Thomson's Acts, vol. iv. p. 522.)
“The same thing is repeated in the charter of novodamus of May 1615, in the crown charter of confirmation of July 1615, and elsewhere.
“The Act of Parliament of 28th June 1633 (v. Thomson's Acts, p. 72) confirms certain grants to the bishopric of Galloway, inter alia, the grants of the The respondents argued ;-In order to succeed the Crown must estab- No. 147 lish three propositions—(1) That the teinds in question truly are
- July 11, 1873. priory of Whithorn and the teinds thereof, and ratifies the same, 'togider with the Lord Advocate former Actes of Parliament quhairby the saids Pryorie of Quhithorne and Abbacies v. Earl of of Tungland and Glenluce wer annexit unit and incorporat into and with the said Go
th, the win Galloway, and
Hathorn. bishopric of Galloway in all and sundry pointes articles and clauss' therin contenit.' The Act then proceeds of new to annex, unite, and incorporate, inter alia, the priory and teinds of Whithorn with the bishopric of Galloway, to remain in all time coming 'ane proper pairt of the patrimonie thereof.
“ The Lord Ordinary holds that the evidence of this statute, and of the other deeds, sufficiently instructs that in 1612 the teinds of Whithom were made a proper part of the benefice of the bishopric of Galloway. They were certainly so in 1633; but in one view of the law the earlier date, 1612, may be of importance.
“ (6) Holding the above facts to be proved, the Lord Ordinary is of opinion that the teinds of Whithorn became in 1612 proper bishops' teinds. That they were originally priors' teinds seems to be of no importance. Bishops got their teinds under various ecclesiastical arrangements, and got their emoluments from various sources. Lands were mortified to the bishoprics by private donors. Abbacies, priories, or even proper parsonages, might be suppressed in order to enlarge the bishop's revenue; but the Lord Ordinary thinks that all teinds which ultimately came to be the bishop's exclusive property and at his absolute disposal, so that he might devote the same, if he pleased, to maintain ‘his state and dignity,' were bishops' teinds, whatever their prior history may have been. Kirks made mensal kirks—that is, to support the bishops' table—were bishops' kirks, and the teinds thereof were bishops' teinds, and this though originally they may have been proper parsonages. From and after 1612, therefore, it is thought that the teinds of Whithorn were bishops' teinds.
“(7) If this be so, the Lord Ordinary thinks that, in point of law, these teinds, which on the abolition of Episcopacy fell into the hands of the Crown, are, while they continue in the Crown's hands, entitled to postponement in allocation.
“ The respondents no doubt maintained that to give the teinds this privilege they must be bishop's teinds at the date of the Reformation—that is, at or about 1560. The Lord Ordinary cannot find authority for this. The passage founded on in Connell (pp. 507-8) is obscure and ambiguous, and none of the cases seem to make any limit of the date of acquisition by the bishops as an essential of the privilege.
“ There is nothing in principle which should limit the date, and give teinds acquired by a bishop in 1560 a greater privilege than those acquired in 1612, or should give teinds mortified to a Popish bishop a greater privilege than those originally mortified to a Protestant one. Indeed the privilege, such as it is, only rests upon practice, which could not commence till after 1633, and the practice seems not to have to any extent depended on the date of the acquisition of the teinds by the bishop. The first case is that of Arngask, 15th July 1715, 1 Connell, 504. The privilege was recognised in many subsequent cases. See, among others, Officers of State v. Lochnell, 7th March 1770, Mor. 14,796 ; Officers of State v. Christie, 16th July 1788, Mor. 14,818; Deans of Chapel Royal v. Hay, 11th December 1799, Mor. App. and Teinds, No. 6. Whatever be its origin, the existence of the privilege must be held to be established.
“ (8) The respondents founded strongly upon the case of the Lord Advocate v. Gordon's Trustees, 17th January 1868, affirmed in the House of Lords 9th June 1871, where it was held that a usage of allocation for a hundred years was inconsistent with the Crown's claim of postponement for bishops' teinds. But in that case the true question was, whether the teinds were in point of fact bishops' teinds or not. They could not be distinguished from other teinds which were not bishops' teinds, and the judgment really went on a failure to prove the fact. In the present case, according to the Lord Ordinary's view, there is no doubt about the fact that the teinds became bishops' teinds in 1612.
“ (9) Even if the teinds in question were to be held priors' teinüs in the