Sir A. Moncreiff v. Baron Moncreiff [1904] ScotLR 41_850 (20 July 1904)

Sir A. Moncreiff v. Baron Moncreiff [1904] ScotLR 41_850 (20 July 1904)

The right to be served as nearest and lawful heir-male in general without specifying a deed was not abolished by the Titles to Land Consolidation (Scotland) Act 1868; the statutory requirement to specify deeds applies only to service as heir of provision. An objector may be allowed proof of averments without a competing petition where the service sought is technical and no heritable right is in controversy.

Citation
[1904] ScotLR 41_850
Parties
Petitioner: Sir Alexander Moncreiff of Culfargie, K.C.B.; Objector/appellant: The Right Honourable Sir Henry James Moncreiff, Baronet, Baron Moncreiff of Tullibole
Jurisdiction
Scotland
Judgment Date
20 July 1904
Procedural Posture
Appeal From Sheriff of Chancery (service of Heirs Petition) / Judgment on Appeal in Inner House, First Division
Outcome
Appeal dismissed; Sheriff's interlocutor affirmed; cause remitted to Lord Kyllachy.
Legal Topics
Service of Heirs, Heir Male in General, Competency of Petition, Titles to Land Consolidation (scotland) Act 1868, Proof by Objector Without Competing Petition, Jurisdiction and Declinature
Succession Law Scots Law Civil Procedure Service of Heirs Heir Male in General Competency of Petition Titles to Land Consolidation (scotland) Act 1868 Proof by Objector Without Competing Petition +1 more

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Parties

Sir Alexander Moncreiff of Culfargie, K.C.B.

Petitioner

The Right Honourable Sir Henry James Moncreiff, Baronet, Baron Moncreiff of Tullibole

Objector/appellant

Procedural Posture

Appeal From Sheriff of Chancery (service of Heirs Petition) / Judgment on Appeal in Inner House, First Division

Legal Issues

  1. 1 Whether a petition for service as nearest and lawful heir-male in general is competent without specifying a deed under Titles to Land Consolidation (Scotland) Act 1868, sec. 29
  2. 2 Whether an objector without a competing petition may be allowed proof of averments in such proceedings

Ratio Decidendi

The right to be served as nearest and lawful heir-male in general without specifying a deed was not abolished by the Titles to Land Consolidation (Scotland) Act 1868; the statutory requirement to specify deeds applies only to service as heir of provision. An objector may be allowed proof of averments without a competing petition where the service sought is technical and no heritable right is in controversy.

Court Disposition

Appeal dismissed; Sheriff's interlocutor affirmed; cause remitted to Lord Kyllachy.

Orders

  • Affirmation of Sheriff's interlocutor repelling objection to competency of petition.
  • Remit of cause to Lord Kyllachy for further procedure.