Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. XI.

Assignations of Bonds secluding Executors.

George Lockhart
v.
Robert Muirhead

Date: 28 January 1708
Case No. No 65.

A bond secluding executors being assigned by the creditor to his wife, with his other effects, without secluding her executors, was found heritable in the assignee's person.

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George Lockhart of Carnwath grants bond to the deceased Robert Muirhead for L. 9000 Scots, the bond expressly secludes his executors, and so is heritable. Robert assigns this and his other effects to Martha Lindsay, his wife, with this express condition and provision, that she pay to Anne Muirhead, their only child, the sum of 7000 merks. The father and mother being both dead, Anne Muirhead, the daughter, serves heir to her father, and confirms executor to her mother, and thereon charges Carnwath for payment. He suspends on these grounds, that the bond being heritable in the person of the first creditor Robert Muirhead, by the 32d act 1661, his assignation of it to the wife, with the burden expressed in favour of their daughter, could not alter the nature of the right, but it still remained heritable; and so her confirming herself executrix to her mother cannot convey the right so as she can sufficiently uplift and discharge this heritable debt, and he is not in tuto to pay it; and it has been oft decided, that even a charge of horning, which will make a sum due by infeftment moveable, will not render a bond secluding assignees moveable, because the design of the creditor is thereby not to take it from his heir, and give it to his executor; 13th July 1676, Christie contra Christie, Sec. 24, h. t.; and 30th December 1690, Heirs and Executors of Bonar contra Gray *.——Answered, By the husband's disposition to the wife, her executors are not excluded, which he would have done if he had minded that it should be

* Examine General List of Names.

heritable in her person, as it was in his own; and President Newton, 1st March 1683, Wisheart contra Ballantyne, Sec. 24. h. t. found a charge of horning made a bond secluding executors moveable; and if so, then an assignation will do it multo magis, especially where she was a fide-commissary and trustee for the behoof of her daughter; and therefore her confirmation, as executrix to her mother, did sufficiently convey the right of this bond, without putting her to the expense of serving heir. ——The Lords having read the assignation, found she was stated in the fee and property of the sums, and had the power of uplifting and disposing; and the clause in favour of the daughter was only a personal obligement upon her, and that the assignation did not alter its former destination of being heritable; and therefore she behoved to serve heir to her mother, ere she could have a right to uplift the money, and validly discharge Carnwath.

Fol. Dic. v. 1. p. 369. Fountainhall, v. 2. p. 423.