Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION I.

Presumed Alteration and Revocation.

William Hall, Advocate,
v.
Dame Mary Campbell, and Sir William Gordon of Aftoun her husband

Date: 17 February 1708
Case No. No 16.

A special assignation to a daughter, with a faculty reserved in favour of the disponer and his lady, or either of there, to alter and dispose as they thought fit, was found revoked, and conveyed to a second daughter by a general disposition omnium bonorum, containing a restriction of the lady to the provision in her contract of marriage, and a revocation of all additional rights in her favour.

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Sir George Campbell of Cessnock having disponed his interest in the capital stock of the African Company of Scotland, to Dame Mary Campbell his eldest daughter, Sir William Gordon's lady, reserving his own and Dame Anna M'Morran his lady's liferent, and full power to himself during his lifetime to alter, and with power to the said Dame Anna, if the longest liver, to dispose of the money as she should think fit; he, Sir George, thereafter made a general disposition of all debts and sums of money belonging to him the time of his decease, in favours of his second daughter Dame Margaret Campbell, married to Sir Alexander Campbell, (now of Cessnock) one of the Senators of the College of Justice, wherein he restricted Dame Anna M'Morran his own lady to the provision in her contract of marriage, revoking all other additional provisions and rights made in her favours, and conveying them to the said Dame Margaret. My Lord Cessnock having confirmed Dame Margaret his lady executrix creditrix to her father upon the general disposition, and given up the share in the African stock in the inventory, they assigned the same to Mr William Hall, who competes with Sir William Gordon and his lady in a multiplepoinding raised by the commissioners of the equivalent.

Alleged for Mr William Hall: He ought to be preferred, in respect that the old Lady Cessnock had a right to the African share, which was revoked and given to his cedent by the general disposition: And suppose the old lady had had no interest in the subject, the same is validly conveyed in favours of Dame Margaret Campbell, by Sir George's exercing the reserved faculty in Dame Mary's right, by the general disposition to the other, which necessarily implies a revocation of the assignation in favours of Dame Mary.

Answered for Dame Mary Campbell: A general disposition cannot take effect to alter a prior assignation to a particular subject, more than an universal legacy would be understood a revocation of a prior special legacy; yea, the argument holds stronger in deeds inter vivos, than in testamentary deeds, such general conveyances being only extended to what remains not specially disposed of. For a man is understood to dispone his goods only as he had them; and so it is that Sir George had no right to that which he had specially assigned to his eldest daughter, but only a faculty which he did not exerce. 2do, The old lady had but a faculty to alter and otherwise dispose of the sum, which could only be exerced by herself; and Sir George's taking the faculty from her upon by his revocation, left the writ in the same state as if such a faculty had never been in her person; and the general disposition to the second daughter, cannot be interpreted a conveyance of what was formerly specially assigned to the eldest.

The Lords found the disposition and destination by Sir George Campbell of his interest in the African Company, in favours of Dame Mary Campbell and her husband, and Dame Anna M'Morran, revoked, and conveyed to and in favours of the Lord and Lady Cessnock, by the revocation and general disposition therein mentioned, and therefore preferred Mr William Hall their assignee.

Fol. Dic. v. 2. p. 132. Forbes, p. 243.