A disposition, revocable on death-bed, was reroked by a revocation contained in another disposition to the same person, with some small variations, and one double of the first was cancelled, though another remained. The heir was found entitled to reduce the second disposition, ex capite lecti, and not barred by the former.
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Sir James Cuningham of Milncraig was possessed of an opulent estate, part whereof was destined to heirs-male, and part to heirs whatsoever; and he inclining to settle his succession, 23d November, 1741, disponed to Captain David Cuningham, his brother-consanguinean, and his heirs-male, and failing them, to his sister-german, Elizabeth, relict of Bryce Whitefoord of Dunduff, and her heirs-male, whom failing, to her heirs-female, whom failing, to his brother David's heirs-female, the eldest of either succeeding without division, his whole estate which he should have at his death, excepting the lands of Whiteburn, under the burden of his whole debts; and he disponed Whiteburn to his sister's eldest son, James Whitefoord of Dunduff, free of all debts and burdens, other than what sums of money he should name in favour of her other children, at any time of his life, ac etiam in articulo mortis; declaring, that this whole deed should be revocable at any time of his life, and in articulo mortis.
He executed another deed, when on death-bed, 18th December, 1746, revoking all former ones, and disponing his estate, under the burden of his debts, excepting the lands of Whiteburn, to his brother David and his heirs-male; whom failing, to his sister and her heirs-male; whom failing, to David's heirs-female; whom failing, to her heirs-female; succeeding as aforesaid; and also under the burden of two bonds, of that date, granted to his sister's daughters, Jean and Katharine Whitefoords; and he disponed the lands of Whiteburn, free of all burdens, to James Whitefoord: At the same time, he executed two bonds, for £.600 and £.400 Sterling, to his two nieces.
At the executing these deeds, Sir James' factor, who was writer and witness, proposed to cancel the former deed; and accordingly, in Sir James' presence, did burn it; but another copy had been deposited in Lord Drummore's hands, which was recovered on an exhibition. The second deed copied the stile of the first, except in so far as it made the above alterations.
On Sir James' death, Sir David (as he said) found the estate under a load of debts, sufficient to exhaust the executry, together with the lands of Whiteburn and others provided by the investiture to the heirs of line, and to encroach on the remanent estate; and therefore he raised a reduction of the last deed, with a declarator, that the one made 1741 was revoked, both by the express clause in the second, and by cancelling; so that there was room for him to take up that part of the estate destined to heirs-male, leaving the other, with the burden of debts, to the heir of line.
Answered: He is only entitled to reduce the second deed, in so far as he is prejudged by it; which is only by laying the provisions to the young ladies upon him; for with regard to the rest of the estate of Whiteburn, he was cut out by the former disposition; and he cannot plead on the revocation, when he endeavours to set aside the deed wherein it is contained. Besides, this second precisely copies the first, with the variations mentioned; so that the revoking the former can only be understood to be in so far as it was inconsistent with the latter. Neither can it be understood to be set aside, by cancelling a copy, for this was plainly done in the view of the second's subsisting; and the cancelling of one copy is of no force when another remains, unless it is proved the person did it with a view of annulling the deed, and dying intestate.
Replied: The first deed was revocable at any time, and actually revoked, both by the express clause and cancelling; and if Sir James did not intend to revoke it, except in the event of the subsistence of the second, by his reconvalescence, he ought to have expressed himself so; and this therefore not standing in the way, the second is to Sir David's prejudice, by laying on him, the heir of tailzie, the burden of debts which ought to lie on the heir of line. He is therefore entitled to insist in his reduction, that he may take up clear the estate destined to heirs-male, leaving the rest, with its burdens, to the heir of line.
The Lords, 12th December, 1747, “repelled the defence, that Sir David Cuningham was barred from quarrelling the deed 1746 by the deed 1741, and found the same was revoked by the revocation in the deed 1746; and found the reasons of reduction of the said deed 1746, and of the two bonds of the same date, relevant and proved.”
On bill and answers,
The Lords adhered.
Act. R. Craigie, Lockhart, & J. Erskine, jun.Alt. W. Grant, Ferguson, & J. Grant.Clerk, Kirkpatrick.
D. Falconer, v. 1. No. 257. p. 347.
