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.
Robert Neilson v. Janet Coutter
Date: 27 July 1710
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Lord Forglen reported Neilsons against Coutter. James Neilson, merchant in Rucan, in May 1701 dispones his goods and debts to Janet Coutter his spouse, with the burden of several legacies to his friends and relations, having no children; and particularly of £40 sterling to James Neilson, his brother's son, under the express quality and condition, that the said James being then abroad, if he should, after getting information of the said legacy, and of his death, come personally, within seven years after the testator's death, and demand it, then he should have it; but, failing of that, then he appointed the legacy to accresceto Robert Neilson the testator's brother, with annualrent during the not-payment. The testator dies in 1701, and the seven years elapse without hearing from James, to whom the £40 sterling was left; whereupon Robert Neilson supposing his right of substitution now existed and took place, in regard James, the first institute, had not claimed his right within the seven years, and so had forfeited the same, and being devolved to him, he pursues Janet Coutter to pay the legacy to him.
Alleged,—The first legatar's right is not irritated nor fallen; because the seven years cannot run from the testator's death, but from the time he got notice and information of it: but, ita est they produce a letter from him, dated in June 1709, from Maryland in America, bearing that he had accidentally met there with a Scotsman, that had acquainted him of what his uncle had left him of his death, and the conditions annexed to it; and if it were absolutely necessary, he would come home and receive it; and desired her advice. And it is plain, by the principles of all laws, that, so long as he was ignorant of the conditions, it was impossible for him to purify the same; for non dicetur conditio deficisse ubi conditioni parere non potuit. And you, Mr Neilson, the next substitute, ought to have sent him notice thereof, and not suffer the time to elapse; and if you have taken that advantage of him, nemo debet ex suo dolo lucrari, nor have benefit arising from his own fault.
Answered,—They are founded in the precise words of the legacy, which gives him seven years to claim his right; and that being now elapsed, est locus substituto; and it was not my province, being debtor, to certiorate him, but it was incumbent on you, who pretend right to the same in the second place; and I can never be in tuto to pay till it be determined whether you or he has the best right to the principal sum.
The Lords considered this case to be decided secundum bonum et cequum; for here is a legacy left under two conditions,—the first is conditio casualis, and the other potestative,. The first, of his getting information, did not depend on him, nor was it in his power; the second, of his coming personally to claim the legacy, was clearly potestative, after he came to the knowledge of it, a competent time being allowed, for the distance he was at; and it shocks natural equity for the substitute to grasp at the advantage of his absence and ignorance. And the Lords remembering that in such cases the Roman law introduced a remedy, by the cautio Mutiana, whereby the party found caution to refund if the condition failed; therefore they allowed James yet a year to return to Scotland, (in respect it would take a long time to advertise him in Maryland, few ships going there,) and claim his legacy; and ordained Coutter, the relict, to find sufficient caution to pay it to any who shall in the event be found to have best right; and if he returned in that time, allowed him to be heard why he had not forfeited his right; and if he came not home then, ordained her to pay it to the substitutes; and found it bore annualrent from the testator's death.
