Effect of failure of the end in view in granting a deed.
Mr Alexander Lockhart, Dean of Faculty, v. The Earl of Eglinton
Date: 31 July 1767 Case No. No 35.
A gratuitous bond, bearing that it is a burden on a certain universal disponee, falls by revocation of the universal disposition.
Click here to view a pdf copy of this documet : PDF Copy
Alexander, late Earl of Eglinton, upon the narrative that he had disponed his whole estates in favour of Katherine, Countess of Galloway, his eldest daughter, with power to burden, gifted and disponed to Alexander Lockhart, his grandson by another daughter, the sum of 10,000 merks, payable the first term after his decease, with which he burdened the Countess of Galloway, his universal disponee. The deed reserves power to alter, and dispenses with delivery.
The Earl having afterwards had issue male by his third marriage, executed two entails of his estates in favour of a different series of heirs, who are expressly burdened, with his debts and childrens provisions, without any mention of the bond to Mr Lockhart.
That bond had been granted in 1713, but did not come to Mr Lockhart's knowledge till 50 years thereafter, when it having been transmitted to him in a blank cover, he brought an action upon it against Alexander, then Earl of Eglinton, the son of the granter.
Pleaded for the pursuer; revocation of legacies and donations is not to be presumed; L. 22. D. De probat. L. 22. D. De legat. 2. Voet. ad. Tit. De legatis, num. 1. And even, considering the bond in the light of a codicil to the settlement of the estate, the alteration of the latter would not imply a revocation of the former. Voet. ad Tit. De jure codicil. n. 5.
The faculty reserved in the settlement in favour of Lady Galloway, seems to be mentioned with no other view than to remove every doubt as to the powers of the granter. It cannot be supposed that the Earl intended to burden the persona prædilecta, and not his other heirs, so that, if failing her, any other substitute had succeeded, the donation must have been effectual.
As therefore the bond was not pendent upon the condition of the succession of Lady Galloway, who was only mentioned demonstrative, as the heir then intended, and who, in that character, fell to be burdened with the payment; so it cannot be affected by the alteration of that settlement. The bond is pure and absolute, and cannot be cut down by a posterior universal disposition, ubi aliud agebatur; as was found, 16th December 1712, Monro against Monro, No 33. p. 5052.
Answered for the defender, The bond does not assign any particular subject to the pursuer, which he could affect as a special legatee; neither does the Earl burden himself or his heirs general, so as that the pursuer can have action against them; the bond proceeds on the narrative of the disposition to Lady Galloway, and, as she only is burdened with it, so, upon the revocation of that disposition, the bond came to an end. It is similar to a legacy payable by a conditional institute; if the condition of the institution fails, the legacy fails also.
The question here is not, whether the bond was revoked, but whether any effectual obligation was created by it. And, at any rate, though the Earl made this bond a burden upon the provisional succession of a disponee, not alioqui successura, the presumption is natural, that he did not mean to impose any such burden upon the legal heir of his honours and estates, to whom he has transmitted them, without any mention of this bond.
“The Lords sustained the defences, and assoilzied.”
Act. Ilay Campbell.Alt. Macqueen.
Fac. Col. No 59. p. 295.
