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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hume v Stewart [1834] CA 13_90 (26 November 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0090.html Cite as: [1834] CA 13_90 |
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Page: 90↓
Subject_Testament—Presumed Revocation—Legacy.—
A testator directed his executor and general dispones to Invest £800, payable in liferent to Janet Idington, wife of Walter Hume, and in fee to her children: after his death, Walter Hume and Janet Idington gave a discharge of the sum to the executor, on the narrative that it had been advanced to them by the testator during his lifetime,—held, that the children could still compel the executor to invest £800, payable in fee to them on their mother's death, in terms of the settlement.
The late Alexander Stewart, tenant in Sandyknow, by a trust-settlement in 1812, conveyed his whole estate, heritable and movable, to his nephew, James Stewart, whom he appointed his executor. He declared the conveyance to be burdened with a sum of £2450, of which £800 was to be secured, at the first term after the death of the survivor of himself and his wife, and was to be taken payable in liferent to Janet Idington, wife of Walter Hume, merchant in Kelso, and in fee to her children, Alexander and Janet Hume, residing in London, Alexander Stewart survived his wife, and died in 1817, upon which James Stewart took up the whole succession under the settlement. There was not a sufficiency of free movable funds to pay the legacy of £800, but the amount of the heritage did not appear. In 1818, a deed of discharge for the £800 was executed in favour of James Stewart, by Walter Hume and Janet Idington. The deed set forth, that during the lifetime of Alexander Stewart and his wife, the sum of £600 had been paid to them, to account of the legacy of £800; and that Alexander Stewart, after his wife's death, had paid them £200 more. They therefore discharged James Stewart of the legacy, and Walter Hume bound himself,“with all convenient speed, to secure his wife and children, to the extent of the said legacy, in terms of the said settlement, by infefting them in his heritable subjects in Kelso.” In 1833, Alexander and Janet Hume, and their mandatories, raised action against James Stewart, to invest the sum of £800, payable in fee to them on their mother's death, in terms of Alexander Stewart's settlement; and pleaded that their father and mother had no power to discharge the legacy in which the right of fee was given to the pursuers only, who were no parlies to the discharge, and who were minors at the time when it was granted. The defender pleaded that the payment of £800, which was made during Alexander Stewart's lifetime, was an anticipation of the legacy, and was made to Walter Hume, as administrator in law for
The Lord Ordinary “decerned in terms of the libel, and found expenses due.” *
The defender reclaimed.
Solicitors: G. Rutherford— A. Douglas, W.S.—Agents.
_________________ Footnote _________________
* “ Note.—It is not stated by the defender that the sum was lent out by him as executor, in terms of his uncle's settlement, and afterwards uplifted by Walter Hume, the pursuer's father, as administrator for his children. The defence is, that the testator, during his lifetime, made an advance to Walter Hume and his wife, and that they, since the testator's death, have acknowledged that this advance was made in extinction of the legacy, and discharged the defender accordingly. But the liferentrix and her husband had no power to grant a discharge of a legacy due to their children, the fiars, nor is their declaration evidence that an advance to them by the testator was meant to operate as a revocation of the legacy to their children. The father cannot be allowed to appropriate to himself, by means of his own declaration, a sum bequeathed to his children; and no other evidence is offered that the testator meant to hold the advance to him as a revocation of the legacy. It is said that the testator did not leave funds sufficient to pay this legacy, but it is admitted that the defender was heir as well as executor, and it is not averred that he entered cum beneficio inventaria.”
