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Scottish Court of Session Decisions >>
Blair v Austin. [1695] Mor 941 (11 December 1695)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Mor0300941-065.html Cite as:
[1695] Mor 941
Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VIII.
Of Second Gratuitous Alienations of the same Subject.
Blair v. Austin
Date: 11 December 1695 Case No. No 65.
Found in conformity with Alexander against Lundie, supra.
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Phesdo reported Alexander Blair of Corbs, &c. against Thomas Austin and the Hospital of Perth. Agnes Blair, by her contract with Austin, had power at her death to dispone, legate, or assign 1200 merks, as she pleased. In her liege poustie, she assigns it to Alexander Blair, and others, reserving the power of 100 merks for her funerals. Afterwards, on her death-bed, she makes a second right of this to Austin, her husband's children, and 200 merks of it to the poor of the hospital of Perth. The two assignees competing, it was objected for the second, that the faculty reserved to her bore a power to dispose at her death, as their's was.—The Lords repelled this, as importing a power any time before her death. Then alleged, It was but of the nature of a legacy, because it bore the word legate, and so might be revoked by the second.—Answered, These words of style were explained by the clear words whereby she made them her irrevocable cessioners and assignees, and excepted only 100 merks to herself, et exceptio firmat regulam in casibus non exceptis.—The Lords found the plain words over-ruled the dubious, and preferred the first assignation. Then it was objected, that the second assignation was first intimated.—Answered, It is null, and reducible on the act of Parliament 1621, I being an anterior creditor by the warrandice of the assignation; which the Lords found, albeit they were both lucrative and gratuitous assignations. But, in regard the first assignees offered once to suffer the Hospital to be preferred for their pious legacy, therefore the Lords would not permit them to resile from that consent, and accordingly preferred them quoad the 200 merks.
Fol. Dic. v. 1. p. 69. Fountainhall, v. 1. p. 686.
