Scottish Court of Session Decisions

Subject_1 IMPLIED CONDITION.
Subject_2 SECT. VII.

A final Settlement frustrated in some particulars, how far effectual as to the remainder.

Pringle
v.
Pringle

Date: 1 February 1671
Case No. No 38.

A person disponed his whole lands to his eldest daughter, with provisions to his younger daughters. The disposition having been reduced, as granted on death-bed; the provisions to the younger children were also reduced.

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Pringle of Soutray having only three daughters, does in his testament, done upon death-bed, dispone his whole lands to his eldest daughter, and constitute her universal legatar, with this provision, that she pay 10,000 merks to the other two daughters. The disposition as to the lands being reduced, as being in testament and on death-bed; the universal legacy was sustained, to give the eldest daughter the right of the dead's part; whereupon it was alleged for the other two daughters, that if the eldest insisted for the universal legacy, she behoved to have it with the burden of the ten thousand merks, which was a burden both upon the land and moveables, and doth no more relate to the one than the other; so that albeit the right of the land be evicted, the moveables remain burdened; as if a father should dispone certain lands to a son, with the burden of portions to the other children, albeit a part of the lands were evicted, the portions would be wholly due without abatement. It was answered for the eldest daughter, that in latter wills, the mind of the defunct is chiefly regarded, not only as to what is expressed, but to what is implied or presumed; and here it is evident, that the mind of the defunct was, that his two younger daughters should only have ten thousand merks in satisfaction of all rights of lands or moveables: Now, seeing they have gotten two third parts of the land, which is much better than ten thousand merks, it cannot be thought to be his meaning to give them any share of his moveables also, but that the half thereof, which was at his disposal, should belong to the eldest daughter without burden.

Which the Lords found relevant, and declared the same to belong to the eldest daughter, without burden of the provisions.

Fol. Dic. v. 1. p. 426. Stair, v. 1. p. 713. *** Gosford reports the same case:

1670. July 13.

In a reduction and improbation of a testament testamentar, made by Robert Pringle of Soutray, wherein he did nominate Agnes, his eldest daughter, his sole executrix and universal legatrix to him, in his whole lands, moveables, and estate, whereas to that part it was blank, when the defunct died, and filled up after his death, by a notary; it was answered, That it was offered to be proved, that the defunct did truly so order it to be done before he died, by the writer and witnesses inserted in the testament. The Lords, notwithstanding of the answer, did sustain the reduction as to the nomination of the executors, and that particular clause which was confessed to be filled up after the defunct's decease, in respect that nuncupative testaments are not sustained by our law; but as to the rest of the testament, they did sustain the same, as a ——— legacy, reserving to both parties to be heard upon the particulars, if they were testable, and how far they were affected with any conditions or provisions.

1671. February 1.

In the foresaid reduction, at Margaret Pringle's instance, against her eldest sister, the testament, as to the disposition of the lands, being found null, and that notwithstanding thereof, all the sisters should succeed as heirs portioners, yet that the said testament should be looked upon as a codicil; whereupon it was alleged for the eldest sister, That she ought to have right to the whole moveables, albeit as to the nomination of her as sole executrix, the testament was null. It was anwered for the younger sister, that albeit her right were sustained to that universal legacy, yet it ought to be burdened with 10,000 merks left to the younger sister for her provision, which being a debt most favourable, ought to be first paid, and then if there be any superplus, they ought to have the half thereof as their portion natural, and the eldest could only have the defunct's part. To this it was replied, That the eldest sister's right was only burdened with the sum of 10,000 merks of provisions, in contemplation of the whole estate, both heritable and moveable, left to her wholly; and now her right as to the lands and heritage being reduced, and her younger sisters being co-heirs with her, they can have no right to the moveables, neither can they be burdened with the said provisions, seeing that can never have been thought to have been the mind of the defunct; for thereby the younger sisters should be in a far better condition than the eldest, having an equal division with her as to the lands and heritage; and besides burdening the moveables with 10,000 merks, it would exhaust the whole moveables and value thereof, and take away the portion natural due to the eldest, and all that she could crave out of the defunct's part. The Lords found, That the will of the defunct being so express and clear, that the eldest should have the whole estate, heritable and moveable, with the burden only of 10,000 merks; that her right as to the heritage being reduced, the provision as to the moveables ought not wholly to affect the same; and therefore decerned, that the three sisters should have each of them their portion natural out of the half of the inventory, and that the eldest, by virtue of the codicil and legacy, should have right to the defunct's half of the free goods.

Gosford, MS. No 302. p. 131. No 327. p. 147.