Scottish Court of Session Decisions

Subject_1 TRUST.

Forbes
v.
The Laird of Boyn

Date: 11 February 1679
Case No. No. 19.

What adminiculations sufficient to instruct that a gift of escheat was in trust?

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The Laird of Blackball standing in the right of the estate of Balvenie, did, with advice of the Lord Salton, grant a disposition thereof to young Philorth, now master of Salton, who granted a back-bond, That the estate should be redeemable upon payment of £.38.000, whereof a part was employed for purchasing to Philorth an apprising at Kinminnitie's instance. In Philorth's back-bond, he is obliged to compone with the vassals of Balveny, whose feus were questionable by Blackhall's right, and to lift the compositions already made by a commission from Blackhall to the Lord Salton himself and others, and to grant confirmations to the vassals, and to apply the compositions for satisfying of the said sum of £.38,000. Arthur Forbes having a right to this back-bond, pursued a declarator against Philorth, that the sum was satisfied by the compositions of the vassals, and his intromissions with the rents; in which process Sir Charles Erskine, Lord Lyon, having obtained the gift of the escheat of the late Lord Salton, competing did allege, that he had right to the bonds granted by the vassals, as being to the behoof of the Lord Salton, when he was at the horn, and therefore Philorth could not apply them for payment of his wadset, but behoved to make them forthcoming to the donatar. It was answered, That the gift of the escheat, though it was in the Lord Lyon's name, was to Philorth's behoof, and therefore he could not contary to his back-bond and trust, apply the composition to his gift, and not to his wadset, which the Lords found relevant, and for instructing the trust of the gift, the Lord Lyon was appointed to depone, who deponed, (the other party not being present to give interrogatories) that he might dispose of the gift at his pleasure; but thereafter he was ordained to be re-examined, whether Philorth's good-brother had told him that he would take a gift in his name of Salton's escheat, and that the declarator raised upon it, was managed by Philorth, by his charges and expenses; and though the Lord Lyon lived several years thereafter, yet he never deponed upon these interrogatories, but after his death, his testament being confirmed by his children, without owning the sums due by these vassals, or confirming them as belonging to their father, the Laird of Boyn had confirmed the same as executor ad omissa to the Lord Lyon, having no interest in him, but a confident of Philorth's.

The Lords found these adminiculations sufficient to instruct, that the gift of the escheat was in trust in the Lord Lyon's name, to Philorth's behoof.

Stair, v. 2. p. 690.