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Scottish Court of Session Decisions >>
Seaton of Gairleton v The Daughters of Sir Robert Seaton of Windygaule. [1672] 2 Brn 640 (25 June 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Brn020640-1060.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Seaton of Gairleton v. The Daughters of Sir Robert Seaton of Windygaule
Date: 25 June 1672
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Umquhile Sir Robert Seaton of Windygaule having made an excambion with his brother, the Earl of Winton, whereby in lieu of his lands, he got an heritable right in my Lord Dumfries his lands; to which sums, Gairleton, as heir, laying claim, compearance was made for Sir Robert's sisters, who alleged the said sums behoved to belong to them, who would be his executors in law, because made moveable by Sir Robert in his lifetime, in so far as he required them and charged the debtors with horning, quo facto animum declaravit.
Against which it was alleged,—That the same ought to be repelled, in regard they offered them to prove that it was never his intention to transmit this sum to his executors by the said charge; seeing esto he had got it, he intended simul et semel, to have wared it on land. He was frequently heard say his sisters should never have a penny of his means; yea they themselves in their ordinary discourse, boast, that good providence has thrown that in their lap which their brother never designed for them. That the bond charged on, was but a bond of corroboration of an heritable security; and so, as an accessory, debet sequi naturam principalis, and not turn moveable but by a requisition, which they cannot show.
Notwithstanding of all which pregnant qualifications of his propositum et animus, they found the sum, as moveable, to belong to the sisters, who were executors.
This was judged hard; only Gairleton had the misfortune to be generally ill-loved, and the ladies found favour with my Lord Chancellor, who is an enemy to none of that sex if they be handsome.
Then Gairleton offered to improve the executions of the charge of horning, hoping that it might be found that the messenger had not two witnesses with him at the time he gave it.
