Scottish Court of Session Decisions

Subject_1 LEGACY.

Emilia Belchies, &c
v.
Sir P Murray.

1752, Dec. 22.
Case No. No. 18.

Click here to view a pdf copy of this documet : PDF Copy

In 1738, Mr A. Murray disponed his estate, what he then had, or should have at his death, failing heirs of his own body, to his nephews John and Thomas Belchies, with sundry substitutions, and burdened them with several legacies, inter alia, to Emilia Belchies, his niece, of L.300 sterling, payable at the first term of Whitsunday or Martinmas after her marriage, with penalty and annualrent from the term of payment, and an annuity of L 15 sterling yearly, commencing at the first term of Whitsunday or Martinmas after his death, until the L.300 should become due. In 1740 he altered his disponees, and disponed the whole to Sir Patrick Hepburn Murray, his nephew, but with the burden of all his legacies granted or to be granted, particularly those in the former deed, which he declared he noways intended to revoke. Thereafter Emilia Belchies was married to Oliphant, and had two sons; and in 1744 Mr Murray, without any mention of the former legacy, granted a bond (revokable) of L.1200, payable after his death, with penalty and annualrent to the said Emilia in liferent, and her two sons, in trust for themselves, and the other children to be procreated of that marriage in fee, whom failing to the husband and his heirs of any other marriage, whom failing, to his own heirs and assignees, excluding the husband's jus mariti and his right of administration, with power to the mother, and failing her, the father, to divide among the children. Sir Patrick was willing to pay tliis last bond, but contended that he was not also liable for the L.300 legacy, and that the L.1200 which the defunct secured in the same manner as a marriage settlement, was plainly intended in lieu of the legacy, and that had the defunct intended that both should be paid, he would have taken some care of the interest of the wife and children in the L.300, whereas it was simply moveable at the time of the marriage, and if at all due, must belong to the husband alone. On the other hand, Oliphant and his wife alleged that though two legacies are left by different deeds to the same person, both are due, much more when so very different as these two deeds;—that it would make Judges too arbitrary, if they could on remote conjectures set aside legacies where no words are to be found in the deed importing a revocation; and on the contrary, in this case, the bond for L.1200, is so far from bearing to be in place or satisfaction of L.300, it is expressly for love and favour.—Whereupon a process was raised for the L.300, which came before me, and I reported the debate;—and the Lords found the L.300 legacy not due. Renit. Kilkerran, Shewalton, and Karnes. I observed that that legacy became imprestable in forma specifica, even during Mr Murray's life, by Emilia Belchies's marriage, which made it impossible for either Mr John or Mr Thomas Belchies, or Sir Patrick Hepburn Murray, to pay it at the first term after the marriage; and therefore, though in equity it might be still due had there been no posterior settlement or legacy, yet in strict law I doubted if a legacy that becomes imprestable during the testator's life, and which he knew, could be due; and if the pursuer's claim was only in equity, then the defence on the apparent meaning of the defunct in this case would be good also.