Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

Elizabeth Home and her Husband
v.
Trotter and Sir Robert Home

Date: 22 July 1715

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The deceased Sir John Home of Renton, in anno 1671, sets a tack to Mr. Patrick Home, his second son, of his whole estate, for payment of his debts ; only allocating an aliment of 2000 merks yearly to Sir Alexander Home, his eldest son, for payment whereof he obtained a locality of the Mains and Parks of Renton. Thereafter, in anno 1694, there is a contract betwixt Sir Alexander and his said brother, Mr. (now Sir) Patrick, whereby the property of the estate is disponed to him, he renouncing the tack, and undertaking the burden of the debts, and assigning the mails and duties of a roum called Presses, and others, to Sir Alexander during life: which he accordingly possessed. But the contract stands reduced at the instance of Sir Robert, son to Sir Alexander. And now the said Elizabeth Home being confirmed executrix to her father Sir Alexander, charges Trotter, the tenant in Presses, for payment of the rent of the said roum ; and he having suspended, while the charger and suspender are in dispute, compearance is made for the said Sir Robert Home, heir of provision to Sir Alexander, who made the following exceptions against the charger's right:

1mo, That the foresaid contract, (which is the only title whereon the charger pretends that the mails and duties of the Presses did belong to Sir Alexander.) stands reduced at Sir Robert's instance. 2do, That the charger as nearest of kin can have no interest therein, because the moveable debts of the defunct are a burden affecting the executry. And it does not yet appear that the moveable debts of Sir Alexander or Sir John, (whom he represented) are paid: for that can be only known upon the event of the count and reckoning betwixt Sir Robert and Sir Patrick. And Sir Robert, as heir of provision to his father, is concerned to prevent a misapplication of any part of the moveable estate which is subject to his relief, for the moveable debts of his father or grandfather.

Answered for the charger,—1mo, That the tack 1671, was renounced by Sir Patrick in favours of Sir Alexander, by the contract 1694, and his liferent reserved, as said is. And though in the question betwixt the heir of provision and Sir Patrick, the said contract, was so far reduced, as to stand for a security only for any onerous cause or valuable consideration paid by Sir Patrick; yet the same can nowise prejudge the executrix of her claim: for her father's liferent was nowise thereby reduced; nor was the renunciation in favours of Sir Alexander thereby reduced, nor in question. To the second, answered, that the executrix her claim, is nowise to be involved in the question betwixt the heir of provision and Sir Patrick; and that she is equally founded, whether the debts were paid or not: for, if not, then the disposition in the contract 1694 was to stand, though only as a security to Sir Patrick, who had undertaken the debts ; and if paid, Sir Alexander had the full right to the lands.

The Lords preferred the executrix to the rents of the lands of Presses in question, reserving to Sir Robert his relief against the executrix, for the father or grandfather their moveable debts, at his father's decease, as accords.

Act. Alex. Falconer. Alt.Hay. Roberton, Clerk.

Vol. I. page 163.