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Jean M'Nab and Others, v Mrs Elizabeth Spittal, and her Husband, for his Interest. [1797] Mor 2303 (30 May 1797)
URL: http://www.bailii.org/scot/cases/ScotCS/1797/Mor0602303-047.html Cite as:
[1797] Mor 2303
Dubious Clauses. - Revocation of a Tailzie. - Liberty to contract Debt. - Conjunctly and Severally. - Just and Lawful Debts. - Liferent and Fee. - Back-Bond. - Importing Property or only Servitude.
Jean M'Nab and Others, v. Mrs Elizabeth Spittal, and her Husband, for his Interest
Date: 30 May 1797 Case No. No 47.
A clause conveying a house, and all that it contained, found not to include documents of debt or money.
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Captain Spittal disponed the house in which he resided, with the offices, and a small inclosure, to Jean M'Nab in liferent, and his natural son by her in fee. The disposition also conveyed to them “the whole plenishing and household furniture of every denomination, and every other article of all sorts and descriptions whatsoever, presently belonging to me, and contained in the subjects hereby disponed, and particularly in my dwelling-house, and office-houses in the said subjects, or which may be therein contained at the time of my decease, dispensing with the generality hereof, and declaring these presents to be as valid and effectual as if every article herein conveyed were, particularly enumerated.”
At his death, Mrs Elizabeth Spittal, his only lawful child, succeeded to the family estate, and her agent took possession of some documents of debt, banknotes, money in gold and silver, and some trinkets, which lay in a cabinet, in the house conveyed by the disposition, and likewise of a gold watch, found in the house.
Jean M'Nab, and the Tutors of her son, brought an action for repetition of them.
The Lord Ordinary found, ‘That the settlement libelled does not extend to, nor can be constructed to comprehend, any of the articles in the defender's possession.’
In a petition, the pursuers contended, That the claue was sufficiently broad to support their claim; L. 21. l. 49. ff. de verb. sign.; Vinnius, l. 2. t. 2. § 1.; Harcarse, voce Legacy, No 663., and Fountainhall, v. 1. p. 244. 22d November 1683, Oswald against Mortimer, voce General Assignation; Dalr. p. 23. 1st December 1699, Henderson against Beer, Ibidem; that this was a question of intention, and that Captain Spittal meant to leave the disponees wherewith to live comfortably in the subjects disponed to them, his heir at law being sufficiently provided aliunde.
The Court were clear, that the disposition did not include the documents of debt or money; 14th May 1795, Earl of Fife against M'Kenzie and Fraser, infra, h. t.; and so far the petition was refused without answers.
But it was thought the pursuers were entitled to the watch and trinkets; and the petition, as to this point, was, of consent of the defenders, remitted to the Lord Ordinary.
Lord Ordinary, Methven.For the Petitioners, Solicitor-General Blair, Hagart, Connell.Alt. H. Erskine, D. Douglas.Clerk, Sinclair.
Fac. Col. No 29. p. 68.
