Scottish Court of Session Decisions

Subject_1 TESTAMENT.

Binning
v.
Contie

1742, June 25.
Case No. No. 5.

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One Binning in Forfar on the narrative of mortality, and being then sick but sound in memory and judgment, made a disposition general both of his heritage and moveables in favours of his brother his next heir, (with a substitution to his children, &c. quoad the heritage,) and burdened the right with certain sums which in one place he calls legacies and donations after-mentioned, and he named several sums to be paid to several persons, and two are expressed thus; “and lastly, I bequeath to the Church of Forfar for the use of the poor 200 merks; moreover I leave to Janet Contie a feather-bed, bolster, &c.” Binning the disponee neglected this deed and served heir to the defunct, and was pursued for payment of some of the sums wherewith the right was burdened. His defence was, that this was a testamentary deed,—which the Lord Minto repelled, and decerned. Binning reclaimed,—and some of us had a further difficulty, whether the defender was liable since he neglected the deed, and it contained no obligation to possess by none other, nor to pay this sum? However the Lords by a great majority refused the bill without answers,—and most rightly.