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Scottish Court of Session Decisions >>
Executors of Brown v Drummond. [1626] Mor 5503 (21 December 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor1305503-069.html Cite as:
[1626] Mor 5503
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XII.
Effect of the death of Debtor or Creditor, before the term of payment, in cases of Bonds heritable by a clause of annualrent.
Executors of Brown v. Drummond
Date: 21 December 1626 Case No. No 69.
A bond, payable at a certain term, to a husband and wife, and their heirs, with annualrent after that term, found to be moveable before it fell due, as in the case above.
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In a registration at the instance of the Executors of James Brown against Mr John Drummond, for registration of an obligation granted by him, whereby he was obliged to pay to the defunct 600 merks, and to his wife, and to the longest liver of them two, and to their heirs, at the term contained in the bond, and failing thereof, to pay ten merks for each hundred thereof to the longest liver of them, and their foresaids, as well not infeft as infeft, ay and while the repayment, the heir of the defunct compearing, alleged, that this sum being heritable, viz. bearing to pay annualrent, pertained to him, and so could not belong to the executor. This allegeance was repelled, and the sum found to pertain to the executor, notwithstanding of the heritable clause, because the husband died before the term of payment, at the which the heritable clause could only take beginning, and so the sum would fall under his testament, and therefore did not pertain to the heir; neither were the Lords moved with that allegeance made for the heir, viz. that albeit the husband died before the term of payment, yet his wife who was also creditrix, and had her liferent by the bond of the foresaid sum, lived after the term, and was yet on life, which was not respected, seeing the sum was found to come under the husband's testament, and the wife would have her own part of the principal sum, so much as of the law would fall to her. In this it occurs to be considered, who can have right to the annualrent since the husband's decease, there being many terms since, for the executor cannot claim it, as is alleged.
Act. ———.Alt. Hart.Clerk, Gibson.
Fol. Dic. v. 1. p. 370. Durie, p. 251.
