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In an action of special declarator, at the instance of Lewis Somervel, donatar to the simple escheat of L. Edmiston, wherein Mr William Stirling, donatar to his liferent escheat, compeared, the Lords found, that albeit the goods and gear of the rebel, which he had pertaining to him at any time within the space of year and day after the denunciation, would fall under the simple escheat; yet, if the same were not gifted, that is, if the gift bear only a disposition of the rebel's goods pertaining to him the time of his rebellion, or if it bore a disposition of the goods pertaining to him the time of granting of the gift; in those cases the gift would extend no further, and would not comprehend any other goods pertaining to the rebel, even which he had within the year, except the gift bear expressly, “a disposition of all the rebel's goods which should pertain to him within the year;” which clause not being insert in the same, the gift could not comprehend them; and albeit the gift wanted that clause, yet the donatar to the liferent would not have right thereto, but there was place to the King and his officers de novo to dispone the same again to a new donatar, by way of simple escheat; and so the Lords found, that this pursuer's gift, which was given in August, and bearing specially the disposition of the goods pertaining to the rebel the time of his rebellion, and of the said gift, which was granted within the year, could not extend to that whole year's farm, but only to the half thereof, viz. to the Whitsunday's term before the gift, and not to the Martinmas term after the gift, seeing the gift was of the foresaid tenor; but the Lords found, that the farms of the rebel's own labouring pertained to the donatar, by virtue of that same gift; and albeit the gift was given in August, yet that it extended to the whole farms of that crop which were in the rebel's hands in mansing, even as, if he had died in August, not being rebel, the same would have pertained to his executors. See Terms Legal and Conventional.
Act. Hope.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 346. Durie, p. 267.
