CHAPTER XIX. TERCE. TERCE is one of the two legal life-rents known to our law. The other is courtesy. Terce is otherwise called in the books, tierce partie, tertia pars, a just and reasonable third part.1 It is the life-rent right enjoyed by a widow, or a wife who has divorced her husband, to one-third of the income of the heritable estate in Scotland in which he died vest and seised, or was infeft at the date of the divorce. It is excluded if she has accepted a special provision. Who is entitled to Terce ?—It is a just and reasonable presumption that a woman claiming terce shall in the general case not to be bound first to prove her marriage. And this was declared at an early period by statute. The Act 1503, c. 77 (c. 23, ed. Thomson), provides: "It is statute and ordained anent the exceptions proponed against widowes, persewand and followand their brieves of teirce or the profite of their teirce quhilk is oftimes proponed against thay widowes that they were not lauchful wives to the persones, their husbands be quhome they follow their said teirce; that, therefore, quhair the matrimonie was not accused in their lifetimes, and that the woman askand this teirce, beand repute and halden as his lauchful wife in his lifetime, sall be teirced and bruik her teirce, but ony impediment or exceptions to be proponed against her ay and quhil it be clearly decerned and sentence given that scho was not his lauchful wife, and that scho suld not have ane lauchful teirce therefore." 1 See Stair ii. 6, 12; More's Notes ccxvi.; Ersk. ii. 9, 44; Bell's Com., 5th Ed. i. 57; Bell's Prin. ii. 1595; Fr. ii. 1079. 2 Terce is analogous to the English dower, not to be confounded with dowry tocher. The heir who disputes the terce on the ground of the invalidity of the marriage cannot take this objection at the inquest on the brieve unless the claimant was not reputed the wife of the deceased. He must raise a declarator, or bring the question in some other competent form before the Court of Session. In a recent case the alleged widow had obtained a brieve, and the Sheriff had fixed a diet for the inquest. At this stage the heir-at-law tendered a minute craving that the process should be sisted on the ground (1) that he was about to raise a declarator of the invalidity of the marriage, and (2) that the lady had accepted a conventional provision. Held that the heir was not entitled to a sist in respect of the Act 1503, c. 77.1 Prior to the Intestate Moveable Succession Act (18 Vict. c. 23, § 7), there was no right to terce if the marriage had been dissolved within year and day without the birth of a child which had been heard to cry. And formerly an alien wife was excluded, but this was remedied by the Naturalisation Act (33 Vict. c. 14, § 10). Divorce. A woman who has obtained a divorce on the ground of her husband's adultery or desertion is, apart from contract, entitled to terce just as if he were dead.2 Nature of Terce. The widow does not take her terce in the character of a creditor, a disponee, or an heir. Her right flows from the law, entirely independent of her husband's volition. Her title to the third part rests upon her husband's sasine. Her right cannot be defeated except by herself. What subjects are liable to Terce ?-There are two primary conditions (1), the subjects must be heritable, (2) the husband must die infeft in them as of fee. 1. Terce is due from lands and houses.—(a) MansionHouse. There is an obvious difficulty in assigning to the widow a third part of the mansion-house, which is in its nature indivisible. In several old cases the subject was discussed, but the law cannot be said to have been settled. 1 Craik v. Penny, 1891, 19 R. 339. 2 Johnstone-Beattie v. Johnstone, 1867, 5 M. 340; Harvey v. Farquhar, 1870, 8 M. 971, aff. 10 M. H.L. 26; Fr. ii. 1217. It is believed, however, that by the uniform practice of the profession, the widow is not allowed a terce of the mansionhouse and its pertinents if there is only one such house on the estate. This is contrary to the case of Montier v. Baillie.1 He Lord Fraser2 cites the case of Mead v. Swinton3 as having overruled Montier v. Baillie. But it will not bear this weight, being decided purely on a specialty. In that case the husband built a new mansion-house a few yards from the old one. died before the new house was completed. The widow claimed that she was entitled to the old house as an appendage to her terce. It was pleaded (1) that even where there are two mansion-houses the widow is not entitled to one of them, and (2) that in this case there were not truly two mansion-houses. The husband would not have built the new house close to the old one, if he had not intended to pull the old one down or convert it into offices. The report bears: "The Court went on the specialty, on which they were clear that Lady Hannay's claim was groundless. Some of the judges, however, expressed great doubts whether, even independent of the specialty, it had any foundation in law." It may be regarded, nevertheless, as certain that the decision in Montier v. Baillie would not be repeated, and that from a mansion-house and the garden, and other pertinents thereto, the widow is not entitled to terce. This rests on the principle that the mansion-house is not a rent-producing subject, and, moreover, being indivisible it goes to the heir whose duty it now is to represent the family, and not to the widow. Where Heir does not Live in Mansion-House. It is stated by Erskine that if the heir choose to reside elsewhere, the widow may claim the mansion-house preferably to any other tenant "upon payment to him of a reasonable rent for his two-thirds."4 This appears to mean on payment of twothirds of the rent which would be paid by another tenant. As Lord Fraser points out, the case of Logan, on which Erskine to the law where there is only one mansion-house. 1 1773, M. 15,859. 2 ii. 1097, note (a). The judg ment of the sheriff that the lady had no claim upon either of the houses was sustained, but nothing is said as 3 1796, M. 15,873. founds, does not support the proposition. The house there was the dwelling-house of a skipper in Leith, a kind of subject clearly liable to terce.1 It is probable, therefore, that no such right in the widow would now be sustained where the subject is the proper mansion-house of an estate. Where the House is Let.-If the heir, instead of residing in the house chooses to let it for a rent, there seems no reason why the widow should not be entitled to a terce of the rent. This has the authority of Bell,2 but is unsupported by decision, except the following: Certain "grass-yards," orchards, &c., adjoining the mansion-house were let at a rent. The widow claimed terce. The heir objected on the ground that they were pertinents of the mansion-house, which was not liable to terce.3 "The Lords, in respect nothing was alleged or instructed that there was a tower, fortalice, or manor-place having a garden or orchard for pleasure rather than for profit, found no necessity to decide what interest a tercer would have in such; but these being let by appearance as grass-yards, they repelled the allegeance, and found the tercer entitled to a third part of the rent paid upon that account." It is submitted that this suggests the true principle, and that when the mansion-house is let and becomes a profit-bearing subject, it is liable to terce. What is a Mansion-House ?-A mansion-house is the house appertaining to a country estate. In Moncrief, supra, the idea is expressed by "tower, fortalice, or manor-place." Erskine uses the phrase "manor-place or country seat."4 A town-house is not a mansion-house. Nor is a villa or dwellinghouse in the country to which no estate pertains. Where there are two Mansion-Houses. It is said by Erskine that in this case the widow is entitled to the second or worse of the two. This was doubted in Mead v. Swinton, supra, and there is no decision in support of it. Bell thinks she would get a terce of one. 1 Logan v. Galbraith, 1665, 1 Br. Sup. 507, and M. 15,842. Fr. ii. 1097. 2 Prin. 1598; Fr. ii. 1097. 3 Moncrief v. Tenants of Newton, 1667, M. 15,844. 4 Ersk. ii. 9, 48. 6 Prin. 1598. SUBJECTS NOT TERCEABLE. 203 Terce of Servitudes and Fishings. Where the lands enjoy a servitude, the widow will be entitled to her proportional share of its use. Where it is divisible, as a right of pasturage, she will have the third of her husband's privilege, and the heir will have the remaining two-thirds.1 Where it is indivisible, as a right of way, she is entitled to all reasonable exercise of the servitude. Where the husband dies infeft in fishings, it would appear that his widow is entitled to a terce in them.2 Heritable Securities. Heritable securities, though now moveable, quoad succession, remain heritable as between the spouses, and are liable to terce.3 Teinds. Terce is not due in the ordinary case from teinds. It is only where they are held by a separate title from the stock that they are liable to terce.* And the widow has no right if the husband's title was merely personal and he had not been infeft in them.5 WHAT SUBJECTS ARE NOT LIABLE TO TERCE. 1. Real Burdens by Reservation. A husband who has disponed lands subject to a real burden cannot be said to be infeft in the burden. It is the sasine of the disponee on which his right rests. Professor Bell at first expressed the opinion that, notwithstanding, terce was due, on the ground that the sasine of the disponee was the sasine of the disponer. But the soundness of this view he afterwards doubted. There appears to be no other authority on the point. Looking to the strictness with which the Court regards the husband's sasine as the measure of the terce, it is not likely that a widow's claim would now be sustained. 2. Superiorities. It was very early settled that terce is not due from superiorities, and the rule has been extended to |