Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. V.
Effect of Substitutions.
The Lord Elibank v. Alexander M'Kenzie of Frazerdale
Date: 26 January 1711 Case No. No 31.
Annualrents of a sum payable to one, he being in life, and failing him by decease, to another, resting unuplifted before the institute's death, found to be in bonis defuncti, and not to be carried by the substitution.
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The Lord Prestonhall having by his bond obliged himself to pay the annualrent of 10,000 merks yearly and termly to Alexander, Archbishop of St Andrew's, his father-in-law, he being on life; and failing of him by decease, to Mary Burnet his second daughter, the Lady Prestonhall, during all the days of her lifetime, and after her decease, to George M'Kenzie her son, in the action of count and reckoning at the instance of the Lord Elibank against Alexander M'Kenzie of Frazerdale, No 35. p. 3500. the pursuer craved to add to his charge the annualrents of the said 10,000 merks due before the Bishop's decease, as in bonis ejus.
Alleged for the defender, The Lady Prestonhall his mother, who was nominatim substituted in the bond quoad the annualrents, had as good right to those resting before the Archbishop's death unuplifted by him, as to what fell due thereafter; the former being transmitted to her without necessity of a service, 4th Feb. 1680, Robertson contra Preston, voce Service and Confirmation, 13th July 1681, (See Christie against Christie, voce Legitim).
Answered for the pursuer, Though persons nominatim substituted in bonds need no service or confirmation to transmit the bonds to them; yet all substitutions take place only from the institute's decease, and carry the stock and profits thereof; for the precedent profits being in bonis defuncti, who was sole proprietor thereof, go by succession to him.
The Lords found, That the annualrents which did precede the Bishop's decease, were in bonis ejus.
