[1749] Mor 6591
Subject_1 IMPLIED WILL.
Date: Prentises
v.
Malcolms
17 January 1749
Case No.No 7.
A husband granted to his wife a liferent upon his estate, and afterwards granted to her an obligation for a certain sum, provided she should renounce the liferent. At the husband's death she not only did not renounce, but obtained herself infeft in the liferent lands, imagining that she did not there-by preclude herself from chusing either to accept the liferent or the obligation. She died without receiving any part of the liferent or of the provision, but it was found, that by taking infeftment she had made choice of the liferent.
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John Malcolm of Grange, by a post-nuptial contract of marriage betwixt him and Katharine Prentis his wife, narrating a former contract which was lost, settled on her the liferent of these lands; afterwards he granted her an obligation for L. 1,000 Sterling; providing that, by her acceptance thereof, she should be bound to renounce the provisions in the contract; and after that he, with her consent, sold Grange, and bought the lands of Sillybabie, which he took to himself and spouse in conjunct fee and liferent.
On Mr Malcolm's death, his relict applied to a lawyer for advice, whether her taking infeftment on the lands of Sillybabie would not exclude her from making choice of the L. 1.000, and having got an answer that it would not, applied to the seller for a precept, as the disposition to her husband and her wanted that clause; took infeftment, and shortly died, without having uplifted either any part of her liferent, or of the interest of the L. 1,000.
Her executors pursued Mr Malcolm's representatives for the L. 1,000 of which they pretended to make election; pleading, that when legatum optionis is left, and the legatar does not chuse in his life, that faculty is competent to his heir, § 23. Inst. De legatis. And here the relict made no option, her infeftment being only intended to give a preference, in case she should afterwards chuse the liferent, as her intention was clear from the advice she sought and received for that purpose.
Answered, Here is no legatum optionis, but she being vested in the right of liferent, a sum is given her, on condition of her renouncing it, which she did not; on the contrary, the infeftment was taking her to it.
“The Lords found, that the pursuers had no right to insist in this action.”
Reporter, Dun. Act. R. Craigie. Alt. Lockhart.
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