Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Brand
v.
Brand

Date: 4 December 1735

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For a statement of the circumstances of this case, see Morrison, p. 15941, and Folio Dictionary, vol. ii. p. 459.

Lord Kilkerran makes the following observations upon it.

“The Lords sustained the reasons of reduction upon this ground, that heritage could not be disponed in a testament, and so it appears to have been decided 13th July, 1670.

“It was on the other hand observed, that it had been by later Decisions found that a testament and a disposition, inter vivos, might be in one writ; and that the doctrine of our law, that heritage cannot be conveyed in testaments, means no other than this, that heritage cannot be conveyed by testamentary words, legate, bequeath; as Newhall further observed, in our law, if a man only nominate an heir without disposition, it will have no effect, though the nomination is onerous.

“Answered,—The law is general, that heritage cannot be disponed in testaments : that it is an incongruous thing at best, to sustain in any case a disposition of heritage, and a testament in one deed; and wherever it is done, they ought to be distinct, whereas here the assignation to the heritable bond is but by way of an executive clause, for the better enabling the executor; and it seems to be admitted, that if it had been this way, ‘and farther, I assign the heritable bond,’ it would have been good.

“It was answered,—That there is no difference; if it would have been good in the one, so is it in the other; for the cause assigned, and for the better enabling,' is only the motive, which can have no influence; and as for the decision in 1670, which seems to determine, in general, that heritage cannot be disponed in a deed which is principally a testament, it is altered by the later decision quoted in the information for the defenders.

“The Lords found as above.”