Scottish Court of Session Decisions

Subject_1 ESCHEAT.
Subject_2 SECT. VII.

Competition Single Esheat with Executor-creditor.

Polwarth
v.
Reochs

Date: 6 November 1685
Case No. No 52.

Found as above.

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Polwart, relict of —— Reoch, having pursued —— Reochs, her husband's children of the first marriage, for implement of her contract of marriage, viz. for payment of bygone jointures, and in time coming, her active title being as executrix creditrix; she insisted against one of them called Thomas, for payment of 4000 merks, and annualrents due by Sir William Nicolson to the defunct, (which bond he had delivered up to Sir William, and taken a new bond in his own name,) or otherways, to assign Sir William's bond to her; and the libel being referred to his oath, he deponed, and acknowledged he had renewed the defunct's bond in his own name. The oath coming to be advised, it was alleged, That the bond was delivered by the defunct to him, for his own behoof, and that accordingly he renewed it when he was on death-bed, as said is, and that it was in satisfaction to him of a debt due to him, by virtue of his contract of marriage, long before the pursuer's contract of marriage, which was the ground of this pursuit.——The Lords found, That there being nothing instructed, that the bond was delivered by the defender's father to him, in satisfaction of that debt; and the oath bearing nothing thereof, they found him liable to pay the money contained in Sir William Nicolson's bond, granted to the defunct, or otherways, to assign Sir William Nicolson's bond, which was granted in place thereof to him. They were likewise of opinion, (but it came not to be decided) that although it had been proven, that the defunct had delivered up the bond upon his death-bed, yet it not being a habile way to transmit it, it was not a relevant defence.

It was alleged, 2do, for the defender, That he, as donatar to his father's liferent escheat, ought to be preferred to the bygone rents of Sir William's bond, preceding the defunct's death.—It was replied, That the gift was obtained, not only after the pursuer was confirmed executrix-creditrix, but likewise after she had recovered sentence for this debt before the Commissaries of Edinburgh, against the defenders.——The Lords preferred her, as executrix-creditrix, to the donatar, in regard her confirmation was before the obtaining of the gift.

Fol. Dic. v. 1. p. 255. Gilmour, No 99. p. 69.