Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. IX.
Obligations to lay out money on heritable security.
Barbara Naysmith v. John Jaffray
Date: 25 July 1662 Case No. No 53.
Found that an obligation heritable quoad creditorem, may be moveable quoad debitorem. See No 51. p. 5481.
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Barbara Naysmith pursues John Jaffray her son, as heir and executor to his father, for payment to her of her umquhil husband's hail means and escheat, by virtue of a missive letter, written by the defunct her spouse, bearing that if he happen to die before his return, that his wife should do with what he had as she pleased, that he thought it too little for her; but he desired her to discharge L. 1000 or 1000 merks to his brother Alexander, and 500 merks to his sister Magdalen, if she follow her advice.
‘The Lords having formerly found, that this letter was donatio mortis causa, or a legacy, and so could only affect dead's part,’
It was now further alleged, That by the pursuer's contract of marriage, he was obliged to employ 6000 merks on land, or annualrent to him and her, and the longest liver of them two, and to the bairns to be gotten betwixt them, which failing, his heirs. This obligement to employ being a debt, the moveables must be liable for it primo loco, and the pursuer can only have dead's part of the remainder of free goods. The pursuer answered, That this destination being on heritable clauses, cannot affect the moveables. 2dly, The bairns cannot have right thereto till they be heirs, and so they will be both debtors and creditors, and the obligation will be taken away by confusion.
The Lords found this defence relevant notwithstanding of the answer; and that albeit the clause was heritable, quoad creditorem, yet it was moveable quoad debitorem, and so behoved to be performed out of the defunct's moveables, and that the entering thereto, would not take away the obligement by confusion, more than one paying a moveable debt, wherein he is both debtor and creditor; yet he will have action of relief against the executors out of the moveables.
It was further alleged, That in the said missive there are two particular legacies left to the defunct's brother and sisters, which must abate the general legacy. The pursuer answered, That both legacies were only left thus, ‘I wish,’ &c. which cannot be obligatory, nor constitute an effectual legacy; but is only a desire or recommendation left in the pursuer's option; and for Magdalen's legacy, it was conditional, she following the pursuer's advice, which she did not, but left her contrary to her will. The defenders answered, That verba optativa were sufficient in legacies, at least were sufficient to make a fidei commiss. legacy; because all fidei commiss. either for restoring the inheritance, or for restoring legacies, in the civil law were in such terms; and albeit such words would not be sufficient, inter vivos, yet favore ultimæ voluntatis, where the defunct's will, howsoever manifested, is the rule, and so is most extended, such words are sufficient; as to the condition in Magdalen's legacy, it cannot be understood of being under the the pursuer's command all her life, and so can only be meant, if Magdalen miscarry contrary to the pursuer's advice, in some considerable matter of her carriage; and however, it is not a suspensitive condition, hindering the payment of the legacy, but obliging the legatar thereafter.
‘The Lords found the legacies constituted, and in terms foresaid valid; and as for Magdalen's legacy, declared, that in case Magdalen miscarried, and took not the pursuer's advice, that she should be liable to refund the legacy to the pursuer, but would not put her to find caution for that effect, the condition being so general. See Legacy.
Fol. Dic. v. 1. p. 369. Stair, v. 1. p. 135.
*** The case Dickson against Young, No 3. p. 3944, was decided in the same manner.
