Scottish Court of Session Decisions

Subject_1 IMPLIED WILL.

Sir Laurence Mercer
v.
Scotland

1745, June 5.
Case No. No. 4.

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Adam Mercer disponed his whole estate heritable and moveable to his wife in liferent, and the children to be procreate of his body in fee, which failing to his sister Elizabeth and the children of her body in fee, and not only burdened the disposition, but all persons who should take any benefit by the disposition should be liable to all his debts. He dying without children, Andrew Scotland, the son of Elizabeth, served heir of provision in this deed, and was pursued by a creditor of his uncle's. His defence was, that his service was erroneous and unnecessary, for he needed only a cognition that there were no children, and that his mother Elizabeth was failed. 2dly, As to the burdening clause, that it cannot go beyond the value of the subject. Minto found him liable universally,—and 11th December last we adhered. But 23d January last we altered and found him liable only in valorem of the subjects disponed,—and this day we adhered. Pro were Drummore, Haining, Strichen, Arniston, Murkle, and Tinwald. Con. were Justice-Clerk, Minto, Dun, Balmerino, et ego, and the President, but it came not to his vote.