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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> David Falconer, of Newtown, Esq. v. The Principal and Masters of King's College, and the Provost, Baillies and Council of Aberdeen Ex parte [1722] UKHL Robertson_397 (31 January 1722)
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Cite as: [1722] UKHL Robertson_397
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SCOTTISH_HoL_JURY_COURT
Page: 397↓
(1722) Robertson 397
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 89.
v.
Ex parte
Subject_Presumption. —
Two deeds of mortification in favour of the same persons, but of different dates, and for different sums, found in the grantors repositories, did not both subsist.
A proof of his intention allowed by the instrumentary witnesses.
This appeal was upon a point precisely similar to the other appeal at the instance of the same appellant, (No. 84 of this Collection). In addition to the two deeds in the former appeal recited, relative to the education of the scholars at the school of Conveth; the late Sir Alexander Falconer of Glenfarquhar, executed two others for maintaining and educating certain boys at the King's College of Aberdeen.
On the 3d of December 1712, Sir Alexander Falconer, by a deed upon the same recital with the first deed in the former appeal recited, left, mortified, and appointed 180 l. Scots, payable yearly by his heirs out of certain lands, to the principal and masters of King's College Aberdeen, for educating and maintaining three boys at the rate of 60 l. Scots each yearly, at the Philosophy College there; which boys should be sufficiently qualified, and be of the name of Falconer, in the first place, if any such there were, and in default of them, of any other boys duly qualified, that should be born or educated within the parish of Conveth; the first payment to be at the first term of Whitsunday, or Martinmas after his decease. The patrons and presenters were the same as in the
Page: 398↓
On the 7th of August 1716, Sir Alexander executed another deed upon the same recital as in the former, whereby he left and mortified 320 l. Scots, payable out of the same lands, in the same manner and at the same terms with the former, to the Provost, Baillies and Council of Aberdeen, for maintaining at the said King's College, four boys of the name of Falconer, if any such there were, and in default of such, any other boys that should be born or educated within the parish, or at the school of Conveth; adding a clause not contained in the former, “that for the security of his heirs, the trustees should report the boys' discharges to the patrons and presenters within a year and a day after they should receive such year's allowance;” and a proviso, “that in case of variance between the patrons and the said magistrates, the first minister serving the cure for the time at the church of Aberdeen, and the minister of Conveth, were to decide and determine the same.”
Neither of these deeds were delivered, but found, with the two others in the former appeal mentioned, in the repositories of the deceased at the time of his death. The respondents brought an action also against the appellant, the heir of Sir Alexander Falconer, deceased, for payment of the several sums contained in both the aforesaid deeds. The appellant made defences, and the Court, on the 29th of December 1719, “found both the mortifications made by the said Sir Alexander Falconer, of Glenfarquhar, in favour of the College of Aberdeen, to subsist.”
The appellant reclaimed, and by his petition, amongst other things, prayed leave, as in the former case, to examine the instrumentary witnesses; but the Court, on the 15th of January 1721, “adhered to their former interlocutor, and refused the desire of the petition.”
Entered 31 October 1721.
The appeal was brought from “an interlocutory sentence or decree of the Lords of Session of the 29th of December 1719, and the affirmance thereof the 15th of January following.”
His argument was the same as in the former appeal.
Judgment, 31 Jan. 1721–2.
Whereas this day was appointed for hearing Counsel ex parte upon this petition and appeal, counsel appearing for the appellant, but no counsel for the respondents, and the appellant's counsel being heard and with drawn: and the order and judgment of this House of the 4th of May last on the appeal wherein the said David Falconer was appellant, and others were respondents, being read;
It is ordered and adjudged, that the said interlocutor of the 29 th of December 1719, finding the two mortifications subsisted as two separate donatives, and the interlocutor of the 15 .
Counsel: For Appellant, Rob. Raymond. Will. Hamilton.