Janet Gibson and Others, v. John Clearihue Macbain
Date: 20 June 1786 Case No. No 11.
A person having accepted of a legacy devised to him, cannot refuse effect to a bequest contained in the same settlement, in favour of another.
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Among the effects belonging to John Clearihue, there was an heritable bond, which devolved at his death to his son, who was then in India.
The son, however, though informed of his father's death, and though he had given authority to his agents in this country to adopt such measures as they thought most for his advantage, made up no titles as heir to his father; it being doubted by those who had the management of his concerns, whether he ought to betake himself to the heritage, or, after collating it with his father's younger children, to draw a rateable proportion of the whole effects.
In the mean time he executed a latter-will, whereby he bequeathed his estate in India to John Clearihue Macbain, one of his nephews, and his estate in Scotland to Janet Gibson, his mother, and his other relations; expressly excluding those who succeeded to him in the former, from partaking in any manner of the latter.
A dispute ensued after his death with regard to the heritable bond. As the sums thereby secured were still in hæreditate jacente of the testator's father, John Clearihue Macbain, who had taken possession of his uncle's India estate, contended, That these did not fall within the words of the devise, which were limited to the estate belonging to the testator; thus endeavouring to distinguish his case from those formerly decided, in which a legacy of a right of lands belonging to a testator, was found effectual against his heir, who had taken a benefit from the testament in which the legacy was given; 17th January 1758, Mary Gainer contra Cunningham, No 10. p. 617.
The Lords found, ‘That John Clearihue Macbain having taken the estate or effects acquired by his deceased uncle in India, under a settlement executed at Calcutta, whereby he stood excluded from any dividend of the effects or estate, which was, or might become the property of his said uncle in Scotland, is thereby debarred from competing for any part of the sums in question.’
Lord Ordinary, Elliock.Act. Maclaurin.Alt. C. Hay.Clerk, Sinclair.
Fol. Dic. v. 3. p. 34. Fac. Col. No 273. p. 421.
