Scottish Court of Session Decisions

Subject_1 TESTAMENT.

Lyon
v.
Gray

1751, Jan. 26.
Case No. No. 9.

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In 1739 M'Cunn a merchant going to the West Indies, settled his affairs by a deed inter vivos, disponing all debts and effects, heritable or moveable then pertaining or that should pertain to him at his death, to John Lyon and John Gray equally betwixt them their heirs executors or assignees, with the burden of his funeral charges and certain debts and dispensing with the not-delivery and reserving power to alter; and in the end he names them his sole executors and universal legatars. Some time after John Gray died leaving a son, James Gray suspender, and in 1742 M'Cunn returned from the West Indies, and gave a commission to John Lyon and James Gray to gather in his effects and sell his lands, and he himself uplifted most of the particular debts mentioned in the deed 1739. The lands were purchased by a trustee for the behoof of John Lyon and James Gray, and on M'Cunn's death Lyon the only surviving creditor confirmed the price as in bonis of M'Cunn, and charged James Gray for his half of it, who suspended; and the question was, Whether John Gray's interest ceased by his predecease in the same way as in the case of an executor or legatar, or if it devolved to his son the suspender as his heir, the disposition being to them their heirs executors or assignees? Lord Dun found for the suspender notwithstanding John's predecease, and on reclaiming bill and answers the Lords yesterday adhered. (I was in the Outer-House.)