Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CLAUSE-GENERAL ASSIGNATION.
Subject_3 A general clause for “Goods, gear, debts, &c, and all other effects of what nature or kind soever,” in a disposition, held insufficient to convey heritable bonds and adjudications.

David Ross
v.
Elizabeth Ross

Date: 2 March 1770

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[Fac. Col. V. 71; Dictionary, 5,019.]

Gardenston. It is a rule of law, that deeds disinheriting a son, especially an eldest son, are to be strictly interpreted. This is a hard-hearted deed. I do not doubt of intention; but that is not enough. It is probable that the testator did not advert that he had such subjects. The late case of Bower was still narrower than this, and yet the Court found for the heir-at-law.

Auchinleck. This is an unnatural deed;—a man, thinking of death, and going out of the world with so deep a resentment against his son. My difficulty is here—there is a conveyance of the whole effects of every kind and denomination. There was no occasion to make a particular enumeration of heritable subjects. Whole effects comprehends heritable bonds.

Pitfour. We are bound to give a fair effect to deeds, however much we may dislike them. Yet I do not think that this deed carries the heritable bonds and securities. It is an important principle, that general words are not to be extended from an idea of intention. A general discharge, or a general submission, is a favourable deed as tending to sopite pleas. Yet a discharge or submission, as general as the clause in question, would not reach to heritable property.

Coalston. If Alexander Ross had conveyed his whole estate, heritable and moveable, excluding his son, the conveyance would have carried every thing. But it is a general rule, that whenever a man conveys a subject specially, and then adds a general clause, that general clause is not to be extended beyond what is conveyed specially. The particular subjects conveyed are plainly moveable. The express “all other effects” cannot go farther. Perhaps the shocking irrationality of the deed may influence my judgment.

Monboddo. Whatever the meaning of the words “goods, gear, and effects” may be in a neighbouring country, I am satisfied that, by the law of Scotland, they do not comprehend heritable subjects. What the intention of the testator was, I do not know.

Justice-Clerk. The general strain of the deeds looks like an intention to exheredate the eldest son entirely, and yet there are words in the deed inconsistent with this notion. It is surprising that a man skilled in Scotch conveyances should have omitted to use proper words for disponing heritage. The clause of exheredation relates to the lands only. My opinion is confirmed by the clause conveying the evidents: for there he applies himself to the double settlement which he has been making; and as he made separate conveyances of the lands and moveables, so he makes separate conveyances of the evidents respecting the one and the other.

President. At first I thought that the intention was to convey all: but, upon reconsidering the case, I am for adhering to the interlocutor of the Ordinary. I am not bound to account for the omission of any subject. The letter of the 6th October shows that Ross imagined he had little or nothing to leave but the farm of Little Dean. In his whole deed he does not say a word of debts to be paid. The deed consists of two parts: First, The lands of Little Dean; Secondly, Goods, &c. All effects must be explained by what went before. It never can imply heritable subjects of more value than his land estate specially conveyed.

There are two parts also in his assignation to evidents. The same idea is followed out in the whole.

On the 2d March 1770, “the Lords found that nothing was conveyed to the defender except the lands of Little Dean and Mayblainie, and the moveable goods, gear, and effects, which belonged to Alexander Ross; and that there are no general clauses in the deed sufficient for conveying to the defender any other heritable subjects belonging to him; and therefore reduced the rights in the person of Elizabeth Ross;” adhering to Lord Rennet's interlocutor.

Act. A. Lockhart. Alt. D. Rae.

1771. April 10, 11. Affirmed on appeal.