Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Lauderdale v. the Lord Hay of Yester
Date: 20 July 1709
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The deceased Duke of Lauderdale, and the Earl of Dunfermline, being debtors to ——————; there is a comprising led, in 1653, against both their estates; and, in the 1668, the Duke, having transacted the debt, took an assignation to the comprising, in so far as concerned Dunfermline's estate, and a discharge and renunciation quoad his own. In 1665 he marries Lady Mary Maitland, his only daughter, to the present Marquis of Tweeddale, then Lord Yester, and dispones to her his whole estate, but under reversion, and redeemable, on payment of £10,000 sterling, in name of tocher, in case of redemption; and which disposition bore a general clause, that, besides the lands generally enumerated, he dispones to her all other lands and rights whatsomever pertaining, or which may be known to pertain or belong to him. Afterwards, in 1676, he uses an order of redemption against his daughter; and, on his paying the foresaid tocher, he obtains a decreet of declarator of redemption; and she and her Lord being charged thereon, in the discussing of a suspension, they are decerned to renounce all benefit of the foresaid disposition, and to accept of the £10,000 sterling in full satisfaction of all. And, accordingly, my Lord and Lady Yester grant a full and ample renunciation in these terms, of the estate of Lauderdale and Swinton, and of all other rights that might pertain to the Duke, and that in favours of the said Duke, her father, and his heirs-male. The present Earl of Lauderdale, as heir to the Duke, his uncle, raises a process against the Lord Yester, as representing his mother, and as lawfully charged to enter heir to her, to denude of the said apprising, in so far as concerned the estate of Dunfermline, thereby apprised in his favours, as heir-male, in implement and prosecution of my Lady his mother's renunciation of all right whatsomever she either had by the disposition or as heir of line to her father.
Alleged for the Lord Yester,—That he is not bound to denude, because his mother renounced no more than what was disponed to her; and the last can be no broader than the disposition, its foundation. But ita est, the Duke disponed no more in 1665 but what was then in his person; which can never comprehend this comprising of Dunfermline, which the Duke had not then acquired, but only transacted it in the 1668, three years after, and took the conveyance to himself and his heirs whatsomever; and she being his heir of line, and not having renounced it, the same devolves to my Lord Yester, her son, and he is not bound to denude of it.
Answered,—That the Duke's disposition to his daughter was an universal settlement of his whole succession; and though he altered his resolution afterwards, and took it from her by a redemption, and gave her a tocher in lieu of it, yet the renunciation must be interpreted and constructed as universal and large as the settlement; and these words, “all rights which may pertain,” is as much as if he had said, “all that shall pertain to me at the time of my decease.” And her accepting the tocher in satisfaction clears that she was to retain nothing. Likeas, this apprising was potentially in the Duke's person the time of his disposition to his daughter; for he had then the right of reversion, and the jus relevi, or his right of relief against Dunfermline, though he had not the right actually settled in his person till the 1668; yet that is many years before her renunciation, and so must comprehend the same.
The Lords found her renunciation extended to this right; and therefore my Lord Yester behoved to denude of it, in favours of my Lord Lauderdale, as the Duke's heir-male.
But this does not terminate the plea; for the Lords Tweeddale and Yester have rights upon the estate of Dunfermline, which they judge preferable to this comprising, on which they intend to compete and exclude my Lord Lauderdale from reaping any benefit thereby.
Vol. II. Page 517.
[See the posterior part of this Case, Dictionary, page 12062.]
