Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

William Lowrie
v.
Sir John Drummond

Date: 26 January 1675

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William Lowrie,—having adjudged the lands of Scotstoun to the behoof of Mr John Drummond, the apparent heir,—pursues Sir John Drummond for reduction of a disposition thereof, granted by Sir Robert Drummond in lecto; which being sustained, as to the onerous causes in the disposition, and an account thereupon, Sir John gave in an article of 800 pound due by Sir Robert, by bond, to Mr Robert Bruce. Against which it was alleged, That this sum could not burden Scotstoun, because Sir Robert Drummond, having disponed his lands of Meedhope to Sir John for 33,000 merks, having assigned him debts extending to 20,[000] and the disposition containing a reversion upon a rose-noble; it did also contain this clause, that it should be leisome to Sir Robert, or his lady, to leave 3000 merks farther in legacy to whom they pleased, which Sir John should pay, if there were no redemption. Ita est, Sir Robert, by his bond to Mr Robert Bruce, orders Sir John to pay the same out of the sums for which he is liable by the bargain betwixt them, at which time there was no bargain but Meedhope; and it could not be understood of the 33,000 merks, which were expressly destinated for several creditors' names in the contract; and so could only be understood as a part of the 3000 merks which Sir Robert had power to leave; and, according to Sir Robert's will, Sir John paid the sum before the right of Scotstoun, which was granted, in lecto, expressly for payment of Sir Robert's debts. It was answered, That the faculty granted to Sir Robert was only to leave in legacy; and this bond cannot be found a legacy; and Sir John, having obtained the disposition only burdened with a legacy, had this hazard, that, as it is ordinary to parties never to make testament, if Sir Robert should omit the same, he was free. And it was found, in the case of the Creditors of Swintoun, that old Swintoun, having disponed his estate to his son, with power to affect the same with wadsets, and having borrowed sums expressly upon that clause, yet the same was not sustained against the donatar, because they were not wadsets in forma specifica. It was replied for the pursuer, That the disposition of Meedhope, being gratuitous only, with the burden of 13,000 merks, the faculty to legate is not to be interpreted strictly, as if the lands had been bought for a full price; in which case, the hazard of not legating might have been a motive to make the bargain: but Sir Robert's will to burden Sir John was the thing truly meaned; and though expressed under the name of legacy, because, de jure, legacies cannot burden heritage, Sir Robert's will, in his liege poustie, must be far more effectual. And, as to Swintoun's case, the reason why the creditors' personal bonds were excluded, was not because they were not in forma specifica contracted as wadsets, but because, being no real rights by infeftment, they could not burden the fee in prejudice of the donatar of the fiar's forefaulture. And the equivalent is no way alike, for a personal right is less than a wadset; but the will of any person in his liege poustie inter vivos, is more than a legacy. And, albeit Sir John, who paid this sum, took assignation, he could not therewith have distressed Sir Robert; seeing he could not have excepted upon the 3000 merks, whereof he had power to legate, or otherwise he could have redeemed for a rose-noble; and so, seeing Sir Robert could not have been effectually burdened, neither can his heir, or his other estate. The Lords found, That Sir Robert Drummond's will, being expressed by this bond, to relate to Meedhope, and could be attributed to nothing but the faculty to legate; that the same was sufficient to burden that estate, though not in the form of legacy.

Vol. II, Page 309.