A deed settling on the grantee the granter's whole effects and funds, and, in the event of non-acceptance, discharging the grantee of a debt due to the granter by him, found to be in both parts testamentary and revocable.
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Janet Dougall executed, in favour of John Dougall her grandnephew, a deed, consisting, first of a general disposition of her whole effects and of the debts due to her, under the reservation of her liferent; and 2dly, in the event of the disponee’s refusing to accept this conveyance, of a discharge to him of a bill granted to her by his father for £.150; the interest of this sum during her life being, likewise reserved.
For payment however of this bill, the discharge of which she had revoked by a formal writing, an action was brought against John Dougall, by certain trustees, in her name.
Pleaded for the defender: The first part of Janet Dougall’s deed is revocable, that being of a testamentry nature; but the second is a pactum inter vivos et de præsenti, the irrevocable nature of which is not altered by its being subjoined to the mortis causa settlement. It is moreover strengthened by a clause of warrandice, implying the most absolute renunciation of any power to rovoke.
Answered: Any renunciation of a power to revoke in such a case is of no avail, because it necessarily partakes of the nature of the deed itself, in the same manner as if it had occurred in a donation inter virum et uxorem. The two parts of the deed therefore are not to be contradistinguished, both being of the same testamentary nature.
The Lord Ordinary having reported the cause,
The Lords found, that the discharge was revoked.
Reporter, Lord Dreghorn.Act. Arch. Campbell.Alt. Macleod Bannatyne.Clerk, Sinclair.
Fac. Coll. No. 65. p. 118.
