Sir John Kennedy of Culzean, v. Mr Hugh Arbuthnot of London, Mariner
Date: 13 July 1722 Case No. No 22.
The act was extended to a disposition of tailzie, blank only in the substitution; so as to annul that substitution, though afterwards filled up according to the directions of the tailzier.
Click here to view a pdf copy of this documet : PDF Copy
The deceased Hugh Kennedy of Baltersan, whilst on death-bed, made a disposition of his estate to his only son John, and the heirs of his body; which failing to blank. And the disposition appears to have been signed with a blank, as to the substitutes. Subjoined to the subscription of parties, there is a doquet, empowering Fergusson of Auchinblain to fill up the blank in the disposition with the names of John Kennedy younger of Culzean, and his heirs, &c.; and the said blank appears now to be filled up accordingly. The words of the doquet are, “I Hugh Kennedy of Baltersan, do hereby declare, that I give power and warrant to William Fergusson of Auchinblain, to insert the names of John Kennedy younger of Culzean, and his heirs; and failing him, to Sir Archibald Kennedy of Culzean, and his heirs, in the above disposition. I have subsribed thir presents at Baltersan, 17th February 1701, before these witnesses, Mr Alexander Fairweather, minister at Maybole, and the said William Ferguson, writer hereof.” John Kennedy, only son to the said Hugh Kennedy, maker of the disposition, dying without issue, Hugh Arbuthnot of London took out brieves to serve himself heir of line to Hugh Kennedy, who died last vest and seased; the service being before the, macers, the Lords named assessors, and Sir John Kennedy having insisted that the lands of Baltersan should be struck out of the claim, both parties agreed to dispute their rights. And,
It was objected for Hugh Arbuthnot against the disposition, That the same was void as to the substitution in Sir John's favour, because the deed is after the act anent blank writs, and was blank as to the substitution at signing; so that whatever may be said of the other parts of the disposition, what clauses were blank at the signing are utterly void.
It was answered, That since this act 1696 does declare, “That all writs otherwise subscribed and delivered blank, than is by that act directed, shall be null,” it can never concern a blank substitution in a deed of this kind, because the filling up the substitute, contrary to the act, can never in sense annul the writ as to the institute; but since the certification is, “that the writ shall be null, not that the filling up of the blank shall be null,” the law must certainly and only concern those writs, where the subsistence of the writ depends upon the filling up of the blank; for instance, where the creditor's name in a bond is blank, or the first institute in a disposition: But since the writ cannot be void, where the institute is filled up, although the substitution be blank; this is causus omissus in the law: The filling up of that substitution is left upon the footing of the former law; and therefore cannot be quarrelled upon pretence of this act. 2do, This act can have no relation to a blank filled up by an order in writing of the granter himself, where the name of the person to be filled up is expressly mentioned in the written order, and that order signed before witnesses in the most solemn manner: Here there could be no fraud, nor occasion to give pleas, to prevent which the act was introduced, more than if the blank had be filled up before signing the original deed.
‘The Lords found the disposition was not filled up in terms of the act 1696 anent blank bonds, &c. and therefore must still be looked on as blank in the substitution.’
It was pleaded in the next place for Sir John Kennedy, Though the Lords have found the disposition no better than blank as to the substitution, after which he has no access to serve heir of tailzie to Hugh Kennedy, the maker; the doquet is still a legal declaration of the said Hugh Kennedy's intentions that he should be substitute, and must have at least the force of a fideicommiss. so as to oblige the heirs at law to make the substitution in Sir John's favour, by granting a direct conveyance.
To which it was answered, It is not every declaration of intention that constitutes a right or transmission, else there would be soon an end of our settled forms and solemnities. In constituting rights and conveyances, the regular, legal, dispositive, or obligatory words must be used, before a person can be deemed to convey, or bind himself; and therefore, though one's intention do appear, if it is not expressed in proper words, to convey or oblige, it has no legal effects; and it would doubtless be of very dangerous consequence, to give any colour to the alteration of the style, by which heritage is ordinarily conveyed. For this reason it is, that heritage cannot be conveyed in a testament, though made in liege poustie: And the Lords in such a case would not even find, that the testament imported an obligation upon the heir at law to denude: Nor would a substitution be sustained, if made in a testament; because a substitution is still a disposition of the heritage to the substitute. Upon the same account, a missive letter of a defunct, declaring his intention to dispone his estate to a third party, in prejudice of his heir, would neither be good as a disposition, nor import an obligation upon the legal heir to denude.
Replied, As to the great danger of allowing the stile of conveyances to be altered, Sir John Kennedy knows no danger at all in it: Besides, he is insisting upon nothing that is contrary to the formal style of conveyances; for when the heir at law comes to implement the will of the defunct, he will be obliged to implement it by a very formal conveyance: But the law hath not tied down proprietors to a precise form, especially in naming of substitutes; any thing in the world does it, that expresses the will of the granter. And indeed it is no absurdity, that a man should name a substitute by a missive letter, if the date be supported, the writer expressed, and such formalities adhibited, as will hinder it to be a null deed. It is true, it has been introduced by custom, that no deed concerning heritage can be contained in a testament, for which, perhaps, no good reason can be assigned; but the law hath not prohibited heritage to be disposed of by any other deed; so that there is no arguing in this case from a testament, to any other form of writing.
‘The Lords found, That the doquet imports a substitution in favours of the persons therein named.’ (Referred to voce Virtual, Substitution.)
The doquet being sustained as a good nomination of the substitute, it was objected against it by Mr Arbuthnot, that it was made on death-bed, and so not good against him the heir.
It was answered for Sir John, That this deed, though done on death-bed, is not reducible, because it was not to the prejudice of him who was apparent heir at the time, he being the institute, and the heirs of his body first in the substitution; and that it was unheard of, that a remoter heir, who came only to be heir at the end of many years, could quarrel a deed as done in lecto in his prejudice, if it was not to the prejudice of him who was apparent heir at the time. It is very true, that if a deed be done in prejudice of the immediate apparent heir, and that immediate apparent heir die, without ratifying or homologating the deed, the next in succession can quarrel that deed, ex capite lecti, not as heir to the granter, but as heir to the apparent heir who is leased; and not upon that ground, that the deed was done to the prejudice of him the remoter heir, but because it was ab initio in prejudice of the immediate heir. This seems to be an undoubted point of law, plainly established by practice; for since the immediate apparent heir, by consenting to the deed, or homologating, can validate any deed on death-bed, so as to exclude every after-heir, yea though the immediate apparent heir should never enter heir; it is a plain proof, that the deed must be in prejudice of the immediate heir at the time, otherwise not reducible, because he can only consent for his own interest. And in this way falls to be explained the decision, 16th July 1672, Gray contra Gray. Stair, v. 2. p. 101. voce Death-bed.
Replied for Mr Arbuthnot, He must take the liberty to contest the principle, “That the law of death-bed favours only the immediate and not the remoter heirs,” since the rule, as it is established by our law and practice, regards heirs without distinction; and the reason of the law seems to concern the remote, as well as the immediate heir. The intention of this constitution, was, doubtless, to prevent the importunities of designing people, who might take advantage of the weakness, or want of judgment of persons in sickness, to persuade them to defraud their heirs; and, in proportion as a sick person might be easier wrought upon, to disappoint a remote relation than a nearer, it would have been reasonable in the law to guard against that event more carefully: For example, a dying person leaving an infant son, and perhaps a sister or sister's children, would be very hardly prevailed upon to disinherit his infant child, but might more easily be persuaded by importunity, to substitute strangers to his own son, to the clear exclusion of his heirs in blood. And if it shall be supposed, that it was the intention of the law to prevent such abuses, reason demands, that the sanction of it should strike at that sort of abuse, which is more easily committed, with the same force at least, as against that other sort which is more difficult to be committed. It is no objection to this, that the immediate apparent heir's consent, does exclude every after-heir from quarrelling; whence it was inferred, that death-bed is only competent, when the immediate heir is leased; for his consent has this effect, whether he or any subsequent heir suffer by the death-bed, in respect, 1mo, That thereby all suspicion of fraud or imposition is taken away; and, 2do, That the consent is fictione brevis manus, of the same import, as if the dying person had disponed to the heir, and the heir in liege poustie had conveyed to the stranger, which would exclude all possibility of challenge, at the instance of the remoter heir.
‘The Lords found the action of death-bed competent to Mr Arbuthnot, though a remoter heir, notwithstanding that the nearest heir was the substitute.’ (Referred to voce Death-bed.)
Fol. Dic. v. 1. p. 104. Rem. Dec. v. 1. No 33. p. 65.
