Answers 1767

January 27, 1767 A N S W E R S F O R 2 7,, 71 6 FORaa and n 1dDepOe upt,7- Depute- clerks to the Bills for loosing o f Arrestments, & c. a o T H E P E T I T I O N o f c,e l 1p r eD kDesp eD Merchant in Portsoy. IT seems almost unnecessary to give your Lordships the trouble of Answers to this petition, on behalf of the present respondents; they are in fact no parties to this question, the only parties are Alexan- der Brebner the petitioner, and his sister Helen Brebner; the res gesta, even from the showing of the petition, shows, That the conduct of the respondents has been unblameable. When the petitioner obtained a suspension of the charge given him by Helen Brebner, the cautioner offered for him in the suspension was Alexander Ogilvie of Culvie, whom Charles Inglis as clerk to the bills of suspension, received as cautioner, by the express consent of John Fraser writer to the signet, the charger's agent. Sometime after, when the petitioner presented a bill for loosing the arrestments which had been laid on before his suspension was obtained, the same cautioner, Alexander Ogilvie of Culvie, was again offered, and the respondents again applied to John Frafer, to know if he would con- sent to his being received; but in place of consenting, Mr. Frafer refused, and said, That after the cautioner was received in the suspension, his cli- ent wrote him Mr. Ogilvie's circumstances were suspicious, and his estate greatly encumbered. Of this the respondents acquainted Andrew Stuart junior, writer to the signet, agent for the petitioner, telling him, That as the sum was very considerable, they could not receive Mr. Ogilvie as cau- tioner, unless his sufficiency was attested by some person of credit. Mr. Stuart pressing the respondents to receive the cautioner without any attestation, they again applied to Mr. Fraser to know if he would consent to it. In answer to which Mr. Frafer wrote them a letter which they now produce, dated at lnverness, 25th October 1766, expressy telling them, That as the debt was near L. 1500 Sterling, the charger did not think her- self absolutely secure with Mr. Ogilvie of Culvie as cautioner in the sus- pension; and insisted to have another cautioner in the loosing of arrest- ment. Mr. Frafer also said that the respondents should be answerable if they did otherways. The respondents humbly apprehend, that from these circumstances had good reason to refuse this cautioner, without his being attested: The respondents have much cause to be cautious in receiving cautioners; if any loss is sustained through the insufficiency of a cautioner, the respon- dents are liable to be sued for repairing such loss; their situation would be extremely hard if they should, on the one hand be subjected to proces- ses on account of the insufficiency of cautioners, and on the other hand be liable to be involved in questions on account of their declining to re- ceive cautioners for whom no attestation was offered, and where the party interested did absolutely refuse to agree to the cautioner, and ex- presly alledged a suspicion of his sufficiency. In respect whereof, WIL. SCOTT. LAU. uo hnuFB A N S W E R S F O R i 1 6e- k 7 p p 7 p t Portioner o f Torphi- chen; T O T H E P E T I T ION o f f e, e p k 7 p p 7 p t B A � � � � � � � � � � � � � k e g R D e the respondent enters upon the arguments in law, contained in this petition, he will be pardon- ed for shortly narrating the deed in question, and for correcting some mistakes in point of fact, com- mitted by the petitioner, upon which a considerable weight is laid by her, in arguing upon the equity and legality of her present claim. In the year 1733, James Binning, fa- ther to the respondent, finding himself afflicted by an in- disposition which he apprehended might terminate in his death, made a settlement of his moveable estate, in the form of a last will or testament, which is subjoined to these answers, for the perusal of your Lordships. The preamble to this deed is as follows: “ I James Bin- ning, being for the present weak in body, tho’ (by the blessing or God) sound in my judgment; and being de- sirous so to order my affairs, that no differences may a- “ rise rise thereanent amongst my wife and children after my decease, hereby nominate and appoint, & c " This preamble, bearing the deed to proceed upon the indispofition of the maker, clearly demonstrates, that it is of a testamentary nature, and that it ought to be viewed in the same light, and judged of by those rules which go- vern every deed of this kind. In this testament, Helen Glendinning, the respondent’s mother, is appointed sole ex- ecutrix to her husband, and a right given her to the whole moveables, burdening her with the payment of the de- ceast ’s debts, and the maintenance and education of Pa- trick and Margaret, his younger children, during all the days of her life. He likewise, with the consent of the re- spondent James Binning, his eldest son, obliged himself, and successors in heritage, to pay to Patrick and Margaret his younger children, the sum of 500 merks each, at the first term of Whits unday or Martinmas after the expiring of year and day after the death of his said spouse: And he also provides, that if either of his said children should die before their attaining the years of majority, the said sum of 500 merks should pertain equally to his eldest son and the surviving child. All that was provided to the respon- dent by this deed, is a legacy of 1 00 merks, and not an annuity to that extent, as let forth by the petitioner. Some time after the execution of this deed, Patrick, the respondent’s younger brother, at the age of sixteen, thought proper to take to himself a wife below his own station, not with the approbation of his father, as asserted by the petitioner, but in direct opposition thereto: Nay, so exa- sperated was the old man, that he used his influence with the parish clerk, and prevailed with him to refuse the pro- clamation of banns; which laid his son under the necessity of making an elopement from the house of his father, and of coming with his new bride for the asi stance of some pri- vate dealer in matrimony at Edinburgh, where the prelimi- nary nary ceremonials to the union of the two sexes are less te- dious, and more easily dispensed with than in the coun- try. Upon this marriage, which was made in contradiction to the will of his father, it is not to be wondered at if no addition was made to his patrimony, nor any settlement proposed in favours of his wife; and his not doing so, tho’ it is clear evidence of his aversion to the match, can never suffer the explanation put upon it by the petitioner, that it showed the intention of the father, that the 500 merks should descend to his grandchildren, tho' their pa- rents did not survive the term at which it became due. Patrick died soon after his marriage, upon which the petitioner was carried home to the house of her grandfa- ther, after whose death she was cloathed, maintained, and educated by the respondent, till, in consequence of his good instructions, she was so lucky as to be married out of his family: And the respondent must: be pardoned for thinking, that the money and attention he bestowed upon his niece, was a full recompence to her for any thing she could claim from him in the right of her father, even up- on the supposition that her plea was well founded. The petitioner has informed your Lordships, that both before, and at the time of his father’s indisposition, the re- spondent used his influence with the dying man, to restrict the provisions in favour of his grandchild to 300 merks; but that his father resisted those solicitations, and declared, that if any alteration was to be made, he would rather in- crease than diminish her provisions.------What authority the petitioner can show for giving your Lordships this piece of intelligence, the respondent is at a loss to discover; but he is certain of this, that no such influence was used by him, and that never any conversation happened between him and his father, relating to the provisions of his niece. —If this information was true, the respondent acknowled- ges ges it would go a great length to show the intentions of her grandfather, and to support the petitioner’s plea; but the respondent avers it to be void of any foundation, and he defies the petitioner to produce the smallest evidence of his asser- tion.—But if such had been the real sentiments of the fa- ther, as they were not, surely the importunity or the re- spondent, was a sufficient reason for awakening his attenti- on to the interest of his grandchild, as he must have fore- seen, that the same motives would make the respondent fall upon every possible expedient after his death, to de- prive the petitioner of her provisions, as rendered him so- licitous to bring about a diminution of it in his lifetime. The respondent thought it necessary to correct the peti- tioner in the particular facts now stated, as most of the argu- ment brought in support of her claim, are drawn from cir- cumstances tending to show the presumed will and intenti- on of her grandfather. Patrick the petitioner's father, died about eleven years before his father, at whose death the settlement in favour of his mother was to take effect; and he also died nineteen years before his mother, on whose death, and the expira- tion of year and day thereafter, his provision of 5 oo merks only became due. Notwithstanding of this, howe- ver, the petitioner thought proper to bring an action a- gainst the respondent, before the sheriff of Linlithgow; where, after considerable litigation, she obtained the follow- ing interlocutor: “ The sheriff having considered the libel, defences, answers and replies, with the disposition libel- led on, by James Binning elder, with consent of James Bin- ning his eldest son, defender, containing a provision o f five hundred merks, in favour of Patrick Binning youn- ger, son to the said James Binning elder, payable at the first term of Whitsunday or Martinms, after the expiry of year and day, after the death of Helen Glendinning spouse to the said James Binning elder, with annualrent “ after after the term of payment; and that it is not denied, that the said Helen Glendinig died before 176 3, years: Finds, that the-pursuer has right to the sums libelled, altho’ Patrick Binning father to the pursu- er, Helen Binning, died before his father, and no men- tion was made of the said Patrick Binning's heirs; and finds the defender liable in payment of the said sum of five hundred merits or principal, and of the sum of fif- ty merks of annualrent from the term of Whitsunday 1764, to the term of Whitsunday last, and of the annu- alrent of the said sum of live hundred merks, from the term of Whits unday last until payment; and decerns ac- cordingly, and finds expences due, anti allows the pursu- er to give in an accompt thereof against next court day. (Signed) Jo. h 77,, R p Sh. depute. Upon this an advocation was obtained by the respon- dent, and Lord Hales Ordinary, after a hearing, and mutu- al memorials, assoilzied the respondent. The petitioner re- claimed to your Lordships, and in answer to the ar- guments advanced in support of her plea, the fol- lowing considerations are humbly submitted to the court. The grounds upon which the respondent went be- fore the Lord Ordinary, were, that the provision by the express words of the settlement only became due after the expiration of year and day from the death of Helen B in- ning. That the petitioner’s father, in whose right she claims, having died before his mother, his heirs are not entitled to the sums provided to him, agreeable to the maxim of the Roman law, that dies incertus pro conditione habetur. 2do, As the deed is beyond all contradiction of a testamentary nature, Patrick having predeceased his father, the legacy becomes void, according to the other rule in the Roman law, quod morte legatarii perit legatum. These These principles the respondent was of opinion in the debate before the Ordinary, applied exactly to the present question; and he fees no cause on account of any thing that has been advanced by the petitioner, why he should adopt different sentiments. With respect to the deed itself, it appears clear to demon- stration to be of a testamentary nature; it proceeds upon the indisposition of the maker, and contains only a dispo- sition of moveables.—It was to have no effect in favour of the wife until the death of her husband.—The provisions contained in it to the children are granted expresly on this account, that they may be suitably provided after the death of their mother: From all which, it appears to be a plea equally well founded in law, for the executors of Helen Glendinning to have demanded the moveable estate from the heirs of her husband, notwithstanding that the died before him, as it is for this petitioner to claim the portion destined for her father, tho’ he died nineteen years before his mother, upon whole death alone any jus crediti was vested in his person. The petitioner, to invalidate the doctrine maintained by the respondent, has endeavoured to introduce a distinction, which, however well calculated to serve her present pur- pose, appears to have no authority from the civil law, nor from your Lordships practice, so far as it is founded upon the principles of the Roman institutions: She has told your Lordships, that no day or term can, in the proper signifi- cation of words, be denominated uncertain, and, of conse- quence, conditional, but when it is absolutely uncertain whether the term shall exist or not, and that the uncertain- ty of a creditor’s arriving at a particular term, will not of it- self render that term uncertain. That Helen Glendinning would die was absolutely certain, and the uncertainty of her foil’s surviving her death could not of itself render the term conditional. Arguing upon this supposition, the pe- titioner titioner endeavours to obviate the force of the decision, Edgar against Edgar, July 1 665, collected by President Gilmour, where your Lordships found, that the children having died before the years of majority, at which their provisions became due, their executors had no claim; a- long with the other decision on 12th February 1677, Bel- chies against Belchies, where it was found, that a provisi- on, payable at the age of fourteen, became void by the decease of the creditor before that term. Tho’ the respondent confesses himself at a loss to disco- ver why the maxim of the Roman Law should not be as ap- plicable to a term, the existence of which depends upon the uncertainty of a person’s surviving that term, as it is when the term itself is uncertain, independent of the per- son; yet he will beg leave to maintain to your Lordships, that such a dist in ction is expresly reprobated by several cases in the Roman Pandects, as it has been disapproved of by the later decisions of this court. To begin with the Roman law, the respondent shall mention some cases to your Lordships, where the distinction, made by the petitioner, of the term, is rejected, as destitute of foundation. A legacy being left to Titius, upon his arriving at the age of fourteen, and he having died before that term, the legacy does not transmit; L. 22. ff. Quando dies leg. ced. In this case the term was rendered conditional, by the un- certainty of Titius arriving at the age of fourteen. This instance, however, according to the petitioner’s doctrine, does not apply to the present question, where the death of the mother was absolutely certain, whereas the survival of Titius to the age of fourteen was altogether uncertain. But Pomponius, in L. 1. § 2. ff. De cond. et demonst. states a case precisely the same with the present, and where the de- cision was the same with that now reclaimed against by the petitioner: The words are, “ Dies autem incertus est, cum ita scribitur: Hæres meus cum morietur, decern dato, nam nam diem incertum mors habet ejus, et ideo, si legatari- us ante decesserit, ad heredem ejus legatum non tran- sit: quia non cessit dies vivo eo, quamvis certum fuerit moriturum heredem.” Similar cases in support of the same doctrine are furnished by Papinian, in L. 79 § 1. L. 40. § 2. f f eod. and also in L. 4. f f. Quanda dies legat. ced. From these authorities, therefore, it appears, that the distin ction introduced by the petitioner, is ill founded; and the respondent flatters himself, your Lordships will be convinced this opinion is ju st, when he produces some ex- amples to the court, the determination of which appears clearly to have been regulated by the same principles. Several instances may be given, but there is one decifi- on, no earlier than February 1749, where the question now under the consideration of the court, was expresly deter- mined, and where the same argument, which is now main- tained by the petitioner, was imployed and rejected: The question was between the executors of one Bell against Ma- son of Clerks, and is stated at full length, and with the greatest accuracy, in the last publication of remarkable de- cisions. The case was this: George Mason became bound to maintain and educate his grandchild, until he should at- tain the age of sixteen years complete, which was calculat- ed to happen upon the 7th of May A���; further be- came bound to pay to his grandchild, at the term of Whit- s unday 1747, which was the first term after his attaining the age foresaid, the sum of 60o merks, with annualrent from the term of payment: George, the grandchild, died before he arrived at the age of fourteen; and John Young, his father, looking upon the obligation, granted by George Young to the child, as a pure debt, made up titles by con- firmation, and conveyed the same in security of a debt due by him to George Bell, whose executors pursued the grand- father for the 600 merks provided to his grandchild:. The defence was, that the child had not survived the age of- ' sixteen sixteen the term at which his provision became due. The Lord Elchies Ordinary repelled the defence, for this reason, that the sum was m.a d e payable at a day certain, v i z. the term of Whits unday 1747; but the cause being bronght to the inner house, your Lordships unanimously altered sustain- ed the defence, and assoilzied. Under the authority of this decision, therefore, the respondent maintains, that tho’ the term itself was absolutely certain to exist, yet if a creditor’s attaining to that period is uncertain nothing will be exigible by those claiming in the right of the per- son who died before the existence of the term certain. That a person will die, is certain, but when this shall happen, is absolutely uncertain, and therefore renders such a term conditional; neither can it be denied, that the term of Whitsunday 1747 would as certainly happen as the death of any person who lived before it; nay, it is not only cer- tain, that it will exist, but likewise the time of the exist- ence was determined, which does not hold in the case of death. But your Lordships will perceive from the deci- sion now quoted, that the provision was found not trans- misib le, tho’ the term at which it was calculated to be- come due, was not only certain as to its existencc, but also as to the precise moment when it should arrive. This case, therefore, is a great deal stronger than the one just now under the consideration of the court, and shows, that the principles o f the civil law, and your Lord- ships judgments founded upon those principles, are entire- ly in favours of the respondent. Before the respondent concludes this, part of the argu- ment, he begs leave to observe, that this portion, of 500 merks is made payable by the testament of his father to Patrick personally, without any mention of his heirs or executors, which shows it to have been intended as a pro- vision to Patrick alone, the right to which could neither descend to his heirs, nor be communicated to his creditor. The The petitioner has condescended upon one case, 25th of November 1 686, Kelso against Maccuby of Knockdoland; where a person, having become bound to pay 1000 merks to his nephew at his age of 21 years, and tho’ the nephew died be- fore that period, yet the court found that the bond was pure and not conditional, and decerned the defender to pay the legacies left by the creditor. As to this case, the respondents shall only observe, that Lord Harcase, by whom it is collected, observes, that it appears different from other decisions. The bond likewise was taken payable to the creditor, his heirs and executors, in which particular it differs from the sum now claimed; neither ought it to be omitted, that the bond, which was the subject of this decision, contained no nomination of a- ny person to whom the sum was to accresce, upon the sup- position that the first creditor should fa il; and, as it is pro- bable the bond wa s onerous, it was more natural that the sum in it should descend to the heir of the creditor, than remain with the debitor, even upon the event of the other predeceasing the term of payment. But whatever were the circumstances that weighed with the court in pronouncing this judgment, the antiquity of its date, and the course of subsequent decisions since that period, must go great lengths in lessening its authority, more especially, when your Lordships are informed, that it is diametrically oppo- site to the doctrine contained in l. 22. ff. Quanda dies leg. ced. as it is likeways to all the decisions connected with this question, from July 1687, when the contrary wa s deter- mined in the cafse Moir against Moir, collected by Harcafe, (Bonds) down to the present times. The petitioner has maintained, that if the doctrine of the respondent was well founded in law, every obligation, however pure, where the term of payment is suspended, would become conditional.—And, to show this, she gives the example of a bond payable five years after date, which was was determined by the court to be asign ab le; but your Lordships will observe, that this decision rather tends to corroborate, than to subvert the principles upon which the argument of the respondent proceeds:—For he holds it to be law, that a dies certus statim cedit, quamvis non v enit, in the same manner as he contends, that a dies incertus nec cedit nec venit, nisidies extiterit, or, which is the same thing, until the condition implied in such a case actually exist. The instance of Campbell against Ruth Pollock, adduced by the petitioner, serves extremely well as an illustration of the argument now maintained by the respondent. The bond there was payable five years after date, which is a certain term, and a jus crediti was immediately created, tho’ the jus exigendi was for a certain time postponed.—This doctrine is supported by the authority of Paulus, in l. 21. ff. Quando dies leg. ced. who, in the beginning of the law informs us, that dies adjecta, quamvis longa s it, si certa est, veluti calendis Januariis centes imis, dies quidem legati statim ce- dit, sed ante diem peti non potest. The petitioner has endea- voured to avail herself of a clause in the deed, by which a re- turn is stipulated to the surviving child, and the eldest son, upon the failure of any of the younger children before they attain to the years of majority. From which she infers, that as her father survived the age of 21, there was a jus crediti vested in his person, which was provided to return only upon this event, that he predeceased majority; but your Lordships will not listen to this interpretation, when you are informed, that it is repugnant to the plain and obvi- ous meaning of the deed itself, and tends to the subversi- on of the whole settlement. Nothing appears more evi- dent, in the respondent’s apprehension, from a general ex- amination, and from a companion of the several parts of it, one with another, than that this clause was intended on- ly to take place, upon the supposition that the children, tho’ they survived their mother, should die before majority. Their Their mother’s death was the term at which their p r o visi- ons became due, if they died before that period, tho’ they had lived to the age of 100A they were not intitled to a sin gle farthing. On the other hand, if they survived the death of their mother, and likeways their majority, their provisions were to descend to their heirs; but, if they outlived their mother, and died before the age of 2 1, one half of the 500 merks became the property of their heirs, and the other half of it accresced, in equal propor- tions, to the eldest son, and the surviving child. So much for the first point in dispute, viz. Whether this obligation ought to be regarded as pure or conditional? The respondent shall now proceed to answer the part of the petition, where the petitioner endeavours to obviate the force of a well known and estab lished principle in law, quod morte legatarii perit legation. Sensible, however of the difficulty of such an attempt, and finding it impossible to get the better of this principle, she labours hard to per- suade the court, that the deed now under consideration is of a testamentary nature, and that the provisions it con- tai ns ought not to be considered as legacies. In answer to this, the respondent refers your L ordships to the deed it- self; and he is convinced, that the perusal of it w ill im- mediately satisfy the court, that this assertion of the peti- tioner’s is destitute of foundation. He shall only trouble your Lordships with observing, that he sees no reason why a clause of return, or a suspension of the term of payment may not be inferred in a testament, as well as in a deed of any other kind. And with respect to that part of it, where it is declared to have the force of a delivered evident in it altho’ remaining in the custody of the granter at his death this makes no alteration in the case, being only the com- mon and ordinary stile of almost every deed of the same nature. And tho’ such a clause might be necessary to pre- vent the children from being disappointed of their provisi- ons m ons, on account of its not being delivered; yet it never, by any fair interpretation, can be made to import, that it ought to have effect, in opposition to every other clause it contains, and to the manifest and expresly declared inten- tions of the granter, s et furth in the deed itself. The petitioner, conscious to herself that her cause re- quired that no circumstance apparently in her favour, how- ever trivial it was, should be permitted to escape observa- tion, has endeavoured to avail herself of the respondent’s consent to this deed. But your Lordships will observe, that the respondent granted his concurrence to this deed, only under the restrictions, clauses, and conditions which it contains: He agreed, that the provisions in question should be granted to the children, and should become due upon the death of their mother; that if they should sur- vive her, and predccease majority, then they should be di- vided equally between the heir and the surviving child. He consented also, that the deed, in these terms, and un- der these conditions, should have all the force which actu- al delivery could imply: But he apprehends, it would be as unprecedented, as it would be a particular hardship and severity, if his consent should receive such an explanation, as to render the deed obligatory upon him, in contradicti- on to the declared intentions of the granter, to every clause it contains, and to the fair and obvious interpretation which must be put upon his own concurrence. If the se- veral conditions in the deed had actually taken place, then his consent might very properly have been adduced as an argument against him: But as this has not happened, it must have quite the contrary effect, and be considered as a circumstance in his favours. With regard to the maxim in law, the petitioner seems to acknowledge the general doctrine of a legacy falling by the predecease of the legatee to the teftator; but she endea- vours to shelter herself under this particular circumstance in in the present case, that the claim is brought by the chil- dren of the legatee, and not by more remote relations or extraneous creditors; to which, she observes, all the decisi- ons of your Lordships upon this point do only apply.--- The case of Marjoribanks, in December 1752, which is di- rectly in point, and which, the petitioner apprehends, re- moves all ambiguity in the determination of the present question, she contends ought to be disregarded, as the ac- tion in that instance was commenced by sisters, for the re- covery of a brother’s provision, who had predeceased his father. But this observation, however critical, makes no variation in the principle of law itself, nor in the applica- tion of it. When a person makes a testamentary settle- ment of his affairs, he certainly must forefee, that claims may be brought, in consequence of such a deed, by chil- dren, as well as by more remote connections. Nay, this case, of all others, is the most probable to happen; and therefore, i f any peculiar interpretation was designed to be put upon it in their favours, there ought to have been a special declaration to that purpose; but where the law has been held incontestable from time im- memorial, and supported by every decision of your L ord- ships relating to this question, no plea of f avour whatever nor no title, however strong, to particular indulgence will prevail upon this court to give the sanction of its authori- ty to any claim upon earth, in opposition to the established law of the country, and the uniformity of its own decisi- ons. I f cases were to be governed according to the rules, prescribed by the petitioner, the consequences would not only be inconvenient, but altogether inextricable, as eve- ry settlement, even in contradiction to the words in which it is exprest, must receive a different interpretation, cor- responding to the real or imaginary preferable pretensi- ons of all the relations, or other persons pursuing in the right of the parties, who could originally claim un- der it.- But But such vague interpretations your Lordships have e- ver rejected, wisely considering it as totally inconsi stent with the certainty of the law, and the security of private parties, at any time to depart from the express words of a deed, on account of the presumed or conjectural intentions of the maker. If an action brought by the si ster of a le- gatee is well founded, your Lordships will support her claim; and tho’ the children of a legatee, who never had any right, had every posib le consideration in their favour, the court, whatever humanity might dictate, must dis- regard such feelings, and pronounce their judgments in conformity to the words of the deed itself, and the establish- ed principles of law. As to the argument drawn by the petitioner from l. 102. ff. De cond. et demonst. the respond- ent only begs leave to observe that the right in that case was immediately veiled in the grandchild, and a jus crediti descended to his heirs, resolvable, if he should die before the age of thirty; wheras, in the present case, no jus crediti was ever created, and the provisions never became due: And the respondent maintains, that if the grandchild’s arrival at the age of thirty had been the condition, upon the existence of which he could enter to the possession of the inheritance, neither he nor his des endants would have been intitled to a sixpence, if he had died before that pe- riod. The law in all cases, and your Lordships will go much greater lengths to preserve a right that has once been legally vested, from being resolved, than you will do to create a new right that has never taken place, and that is expresly excluded by the words of the settlement from which it is derived. The same answer will serve to the case of the magistrates of Montrose against Robieson, determined the 21st of November 1738, and laid hold of by the petitioner: In that instance, there was a right immediately created to the father descendable to his heirs. This was also a bond of provision, which was immediately to begin to have eff ect, and not a last will or testament, the provisions of which were suspended to a future term, and therefore can have no influence upon the present question, or the maxim in *in law, that a legacy unvariably falls to the ground by the predecease of the legatee. As to the arguments drawn from the extraneous circum- stances, of no provision being made for the petitioner in her father’s contract of marriage, and of nothing being left to her even after his death; the respondent must be forgiven for being of opinion, that instead of supporting, they rather concur to render her plea less favourable: Her father’s marriage was made in contradiction to the senti- ments of her grandfather, who gave it all the opposition in his power, consequently, nothing was to be expected on that occasion; and her remaining unprovided at the death of her father, when her grandfather knew her situa- tion was a plain indication that he never intended any patrimony for her. It is a curious method of argumen- tation, to infer, from a person’s not having settled any thing upon his grandchild, when he knew her to be unprovided, and had it in his power, that therefore your Lordships are under the obligations both of law and justice to com- pliment her with a more ample portion than she certainly would have got, if her grandfather had made an express settlement in her favours. She was supported by her grandfather in a suitable man ner, and lived in his house during all the days of his life. Up- on his death she was taken under the protection of her uncle who generously bore all the expence of her main- tenance and education, and treated her with the tender- ness of a parent till she procured a suitable husband. If these good offices and voluntary exertions of liberality, conferred upon her by the respondent and his father, can give her any claim in equity for the provision she is de- manding, when she is excluded by law and the words or the deed itself, the respondent humbly submits to the de- termination of your Lordships. In respect whereof, &c. AR. C O C K BU RN. C opy mR&. T E S T A M E N T, i 1 6 e- k 7 p p 7 p t in favours of his Wife and Children. I J 16e- k 7 p p 7 p t A portioner of Torphichen, being for the p r e s ent weak in body, tho’ (by the blessing of God) sound in my judgment; and being desirous so to order my af- fairs that no differences may arise thereanent amongst my wife and childeren after my decease, hereby nominate and appoint Helen Glendinning, my spouse, my only and sole ex- ecutrix; and hereby give, grant and dispone to her, my haill moveable goods, gear, debts, sums of money, corn, bestial, houshold plenishing, and utensils of my employ- ment, and others whatsomever pertaining and belonging to me at the time of my decease, (heirship moveables in- cluded;) with full power to her, immediately after my death, to intromit with, uplift, receive, and dispose upon the haill premisses brevi manu, without necessity of inven- tory; always with and under the express burdens after mentioned: Likeas, the said Helen Glendinning, by her ac- ceptance hereof, becomes bound and obliged to satisfy and pay my haill ju st and lawful moveable debts, with the ex- pences of my sickness and funerals; as also, to maintain, educate, and aliment Patrick and Margaret Binnings, my younger children, during all the days of her life: And further, the said H e l e n, by her acceptance hereof, becomes bound and obliged to pay to James Binning, my eldest son, the sum of 100 merks Scots, and that at the first term of Whits unday or Martinmas after the expiring of year and day after my decease, and of giving him a furnished bed, ta- ble, and six chairs, when he shall demand the same of her. And it being highly reasonable, that my said younger chil- dren should be provided in a suitable manner to my cir- cumstances, after the decease of my said spouse, I, the said James Binning, with the free and full consent of James ning my said eldest son and heir, bind and oblige me, my. heirs heir and successors in m y lands and heritage, to content and pay to Patrick and Marget Binnings, my said young- er children, the sum of 500 merks Scots each of them, and that at and against the first term of Whitsunday or Martin- mas after the expiring of year and day after the death of mv said spouse, with a fifth part more of penalty, in case of failzie; together with the due and ordinary annualrent of the said respective sums, from and after the said term of payment during the not payment. And failing either of my said children by death, before their attaining the years of majority, their said portion of 500 merks is here- by declared to pertain equally to the said James my eldest son, and the surviving child. Declaring thir presents to be in full satisfaction to my said children of all they can ask or crave of me, or in or by my death, except good, will allenarly. And further, declaring thir presents shall have the force of a delivered evident, albeit the same should be found in my custody the time of my death; and shall be as sufficient to my said wife and younger children, as i f a separate disposition and bonds of provision were delivered to my said spouse and younger children respec- tively; whereanent, and all other defects herein, dispenses for now and ever. Consenting to the registration hereofin the books of council and session, or others competent, for conservation; and thereto constitute mv procurator. In witness whereof, I, the said James Binning, and I the said James Binning young- er, in testimony of my consent, have subscribed thir pre- sents, consisting of this and the preceeding page; (written upon stampt paper by Mr. Hugh Anderson, clerk, of the re- gality of Torphichen,) at Torphichen, this 28th day of Sep- tember 1 733 years; before these witnesses, Mr. John Davie schoolmaster in Torphichen, Walter Maaaulay maltman in Bathgate, and the s aid Mr. Hugh Anderson. (Signed,) Ja. Binning. Consents James Binning; John Davie witness, Hugh Anderson witness, Walter Macaulay witness.