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In an action betwixt Mr. John Leitch and the Laird of Balnamoon, the Lords found, That obligations, wherein the payment is appointed to be made to a second person therein named substitute, in case of decease of the first person, where the first person lives after the term of payment appointed by the bond, pertains to the said first person, notwithstanding of the substitution, and that the same comes under his testament, and pertains to his executors, and that the second person hath no right thereto by virtue of that clause of substitution, albeit the first person should never alter that clause of the bond in his life-time.
Act. Hope et Stuart.Alt. Nicolson et Nairn.Clerk, Gibson.
Fol. Dic. v. 2. p. 395. Durie, p. 49.*** Haddington reports this case:
Mr. Andrew Leitch lent 2000 merks, for himself and in name of John Leitch, his son, to the Laird of Balnamoon, to be paid to himself, and failing of him by decease, to the said John. Question arose betwixt Balnamoon, assignee to Mr. Andrew Leitch's executor, and to one of his daughters, to whom the sum was left in legacy. The chief part of a contentious disputation being, whether, by Mr. Andrew's decease, the sum fell in his testament to his executors or legatar, or to Mr. John, his son, appointed by the bond to have it after Mr. Andrew's decease? All the Lords found, That Mr. Andrew, in his own life, might have disponed upon the sum, received it, discharged it, assigned it, and that it might have fallen under his escheat, or might have been comprised or arrested for his debt; and therefore, that it was his proper sum, fell in his testament, and belonged to his executor or legatar, and not to his son Mr. John; and declared, that they would observe the like manner of decision in all bonds conceived in the like terms, for many causes and respects proponed by the Lords at the reasoning of the cause. Thereafter, the parties submitted, and the Lords agreed them amicably.
