(1770) 2 Paton 189
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Succession — Deed — Implied Revocation.—
A father executed a settlement in form of an entail, in favour of his eldest son, and his heirs-male; whom failing, to his second son and his heirs-male, &c., but reserved power and faculty to himself to affect or burden the fee of the lands: Held that he was entitled to execute a subsequent disposition of the estate in favour of his second son, passing over the eldest son; reversing the judgment of the Court of Session.
Jan. 24, 1715
Jan. 24, 1726.
Andrew Heron of Bargaly, in the county of Wigton, had two sons, Andrew and Patrick; Andrew, the eldest, he disinherited, by the deed after mentioned. Captain Patrick Heron, the second son, was married to a Miss Vining, only child of Mr. Vining in Hampshire, with whom he inherited a large fortune. Of this marriage there were two sons, of whom John Vining Heron, the respondent, was the eldest, and Dr. Andrew, the appellant, the second eldest. The present competition arose between these two brothers for the estate of Bargaly, left by their grandfather. The question between them depended on the effect of certain deeds executed by the grandfather. Of this date, a disposition was executed by him, disponing his estate in the shape of an entail, “to Andrew Heron, his eldest son, and the heirsmale
“Forasmuch as Captain Patrick Heron, my (second) son, is to relieve me of the sum of £920 sterling, due by me to Patrick Heron of that ilk (my nephew), and for which sum the said Patrick hath an heritable security upon the lands of Bargaly and others, the which sum extends to 19 years' purchase of said lands, upon payment of which the said Patrick Heron is to denude himself of all right to the lands: Therefore, to have sold, annailzied, and disponed to and in favour of the said Captain Patrick Heron, my son, in liferent, and to Andrew Heron, his second lawful son, in fee; which failing, to any other of his sons he shall think fit, heritably and irredeemably,”
the lands of Bargaly, reserving his own and his wife's liferent. Two years afterwards, and of this date, this disposition was altered so far as to give the fee in place of the liferent, to Patrick, the father, and the succession to his second son Andrew, the appellant.
Nov. 30, 1764.
Jan. 21, 1766.
June 24. ——
Nov. 28, 1767.
The appellant, then coming to the knowledge of his rights, which were concealed from him by the respondent, entered appearance in the action brought against the nephew, (who, in the meantime, had taken possession of the estate under his bond,) and claimed under the deed of 1726, executed by his grandfather, which conveyed the estate of Bargaly to Captain Patrick Heron in liferent, and his second son, the appellant, in fee, contending that the deed of 1715, executed by the grandfather, and under which the respondent
Pleaded for the Appellant.—As the only debt or encumbrance on the estate was that due to Patrick Heron, the grandfather's nephew, and as it has now been extinguished by perception of the fruits had by his possession, the only question that remains is, which of the two brothers, the deceased's grandsons, has best right to the estate? The reason is clear and obvious for preferring the appellant, the second son of Captain Patrick, to his eldest brother, the respondent, because that brother was the heir richly provided for by the estate coming to him through his father and mother. This gives at once a reason and foundation for the deeds 1726 and 1728, and opens up a favourable view in support of these deeds. There can be no doubt that men may dispose of their property at pleasure, either with or without valuable consideration; and, therefore, it was wrong in the Court of Session to hold that the deeds 1726 and 1728 were ineffectual and incomplete, for want of consideration, in consequence of the condition on which they were
Pleaded for the Respondent.—The respondent, as heirmale of his grandfather, and heir to his father, Captain Patrick Heron, has a preferable right to the appellant, his younger brother, to the estate of Bargaly, in terms of the deed 1715. The appellant's only claim rests on the two deeds of 1726 and 1728. In regard to the first, no evidence exists to shew that it was accepted of by Captain Patrick. Indeed, the contrary is presumable; because the terms thereof were so disadvantageous, as compared with the deed of 1715, which gave him the fee in place of the liferent, as at once to
After hearing counsel, it was
Declared that the deed of the 4th of January 1726 was a complete and effectual disposition and settlement of the estate of Bargaly by Andrew Heron, and it is therefore ordered and adjudged that the interlocutors complained of be reversed, and that the cause be remitted back to the Court of Session to proceed accordingly.
For Appellant, C. Yorke, H. Dalrymple.
For Respondent, Al. Wedderburn, Tho. Lockhart.