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In the before mentioned action of declarator, at the said Doctor's instance, against Stirling of Ardoch, 9th June 1674, No 477. p. 12586. voce Proof, it was farther alleged for the pursuer, That the defender being not only heir, but executor to his father, the declaration subscribed by the father ought to affect the executry, which was opulent, as being of the nature of a legacy, or otherwise it being sufficient to constitute the pursuer a lawful creditor, and so make the defender liable in so far as the executry did amount to pay his just debt in so far as the right of the wadset did exceed the bonds and sums of money therein contained, otherwise this inevitable prejudice would follow, against all law and reason, that the pursuer would be liable to the bonds granted by him for borrowed money; and, besides, he would lose the whole benefit of the wadset, the bond of 7000 merks, and others posterior, not being included in the right of wadset, which was only granted for the first 300 merks. It was answered for the defender, That the said declaration being on death-bed, being in effect a reversion to a right of wadset, which is an heritable right and no legacy, which is a donation without an onerous cause; if, as heir, he was not liable, it could not bind him as executor, executry being only liable to moveable debts; and the bonds granted since the wadset, being true bonds, for sums of money not relating thereto, could not be taken away but scripto. The Lords, after much debate amongst themselves upon the nature of the trust, and the great appearance thereof in this case, the parties being so near, did at last find, That it could not affect the executor notwithstanding thereof, and therefore assoilzied, being induced upon these reasons; that albeit, as to moveable debts not constituted by writs, a declaration on death-bed is sufficient to affect the executry, yet that the declaration could not amount to so much as to take away an heritable right, to which only it did relate, and imported no less than a reversion of a wadset, and so it being noways obligatory against the heir, could not affect him as executor; but it being clear, by the back-bond, that it related to the whole bonds granted by the pursuer's deceased father, they found that unless he could prove that there were any new sums of money lent by Sir Archibald, beside the former bonds, which were due the time of the back-bond, that the pursuer should be freed thereof, and the same delivered up, or discharged, as being fully satisfied by the irredeemable right of the wadset; which was just, and without which the pursuer should be liable in double payment, not only by losing the right of his wadset, but by payment of new again of the same debts for which the wadset was granted.
Fol. Dic. v. 2. p. 308. Gosford, MS. No 712. &. 713. p. 430.
*** Dirleton and Stair's reports of this case are No 477. p. 12586. voce Proof.
*** A similar case is reported by Fountainhall, 22d November 1698, Cuming against Cuming, No 24. p. 5398. voce Heirship Moveables.
