Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 LEGACY.
Subject_3 A Legacy was left to a person, “to be paid when he is sixteen years of age.” The Legatee survived the Testator, but died when only eleven years of age. Found that the legacy vested in the Legatee a morte testatoris, and was due to his nearest kin.

Helen and Elizabeth Burnet
v.
Sir William Forbes

Date: 5 December 1783

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

[Fac. Coll. IX. 212; Dict. 8105.]

Gardenston. At first sight I thought that the principle, dies incertus pro conditione habetur, would have applied here; but now I see that not only the authorities from English law and civil law, but also the authorities of different authors who have wrote on our own law, determine for the subsistence of the legacy. It is the result of those authorities that, when there are two orationes, as the civil law expresses it, a constitution and a term for payment, a right is vested, and must transmit.

Justice-Clerk. By the words in the testament. I should have thought that a plain man would have meant that the legacy should not vest until Arthur Burnet attained the age of sixteen; but I cannot think myself at liberty to go against so many authorities as are urged to the contrary.

Braxfield. I should be against the legacy, had I never heard of the civil law, and I own that the civil law speaks less sense in this case than in many others.

Hailes. I wish that presumed will may be laid out of the question. Here there is every authority, at home and abroad, concurring with civil law, and I cannot venture to oppose any opinion to a concurrence so uniform and general.

President. Laying aside the principles of the civil law, and the authorities of English law, I should have no doubt of the legacy having lapsed. I do not think that all the subtleties of the Roman law are received into ours. It is plainly the opinion of Judge Blackstone, that, were it not for the course of decisions, the legacy, in the circumstances of this case, ought to be held as lapsed.

On the 9th December 1783, “The Lords decerned for payment of the legacy, with interest thereof;” adhering to the interlocutor of Lord Swinton.

Act. J. M'Laurin. Alt. Ilay Campbell.

Diss. President. Non liquet, Braxfield, Henderland.