Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

John Lilly
v.
The Sisters of William Gladstones

Date: 30 November 1704

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Lord Crocerigg reported the creditors and daughters of Halbert Gladstones, merchant in Edinburgh, and John Lilly, tailor in the Hague, competing. William Gladstones, son to the said Halbert, going to Flanders, as surgeon to Colonel Lauder's regiment, he dispones his whole estate to his sisters, in 1693, reserving his own liferent, and with the burden of his father's debts, and all debts already contracted by himself. And, because it wanted a procuratory, they assign it to one Douglas, who, upon their renunciation, obtains an adjudication for implement. William, in 1699, becomes debtor, to this Lilly in Holland, for £2000 by bond; who raises reduction of the foresaid disposition:—1mo, As being made for love and favour, without any onerous cause, to conjunct persons, his own sisters, and kept latent to ensnare the pursuer; and, at best, was only donatio mortis causa, and so of its own nature revocable, and, de Jacto, revoked by his contracting this posterior debt: and though he cannot quarrel it upon the Act of Parliament 1621, (that being only introduced in favour of anterior creditors,) yet law had not left this case destitute of a remedy; for, on the 12th of February 1669, Pott against Pollock, the Lords reduced a bond granted by a father to a son, even at the instance of posterior creditors with whom he continued to trade; and sicklike, 24th January 1677, Blair against Bisset: and that general dispositions of all that the granter shall have at the time of his decease, though made inter vivos, are always subject to the debts he shall have at his said decease, and affectable thereby. 2do, The disposition made by the sisters to Douglas clears this; for it bears an express clause, that their disposition from their brother shall neither prejudge nor be made use of against any of William their brother's creditors who shall be found to have right and interest therein; and, therefore, it can never be obtruded against Lilly, a lawful creditor of William, though his debt be contracted posterior to the disposition.

Answered,—William's right to his sisters was not merely gratuitous, being burdened both with his own and his father's debts; neither is it revocable, except only in the precise case therein mentioned, of his return, or having heirs of his own body; none of which existed: neither can it be called fraudulent and latent, seeing no law obliges a man to publish, registrate, or propale his disposition, till he please. To the second;—Answered,—That no clause, adjected by the sisters in their conveyance to Douglas, did invert and alter the first right, or take away the jus quœsitum introduced by the first disposition, in favour of the creditors.

Replied,—They opponed their reasons of reduction; and this jus quœsitum was a mere chimera: for, if the disposition was revocable, and de facto revoked; if it wasjatent, fraudulent, et omnium honorum qu œ ei habere contingit tempore mortis; then it is certainly burdened with all the debts he shall owe at the same period of his death; and so the jus quœsitum evanishes; especially, seeing the creditors have made use of that disposition to Douglas, bearing the foresaid quality, and accepted it, they cannot repudiate or divide their own right, but must take it with the provision as it stands, and not obtrude against Lilly's debt.

The Lords were all clear, that Mr Lilly, or any other posterior creditor to the son, would be preferable to the sisters, or any benefit they could claim by their brother's disposition, in case there should be any superplus more than paid the anterior creditors. But the question was, If Lilly's debt could come in pari passu with the father's and son's creditors prior to William's disposition in 1693? And the Lords, by plurality, found, by the conception of the right, they were preferable; and Lilly could not come in equality, but only after they were paid, and before the sisters, if the subject disponed was able to pay them all.

Vol. II. Page 243.