Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 LEGACY.

Archibald Scot and Margaret Mill
v.
Sir Alexander Ramsay and Others, Trustees of Richard Oswald, Residuary Legatee of John Mill

Date: 10 July 1777

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It is a general rule in law, that a legacy becomes lapsed by the death of the legatee during the life of the testator, unless it be also given to the legatee's heirs. It proceeds upon this principle, That in the first case the testator prefers himself to the legatee's heirs, but prefers the legatee to his the testator's heirs; and, in the second case, that he prefers the legatee's heirs to his own heirs. This principle is fixed; and yet this principle notwithstanding,—where it appears that the testator intended that the legacy should go to the legatee's heirs, even where the legatee died before the testator, and where the obligation to heirs is not expressed,—it will go accordingly; for it is purely a questio voluntatis, and falls to be ruled accordingly.

John Mill of Old Montrose, 2d December 1765, settled his affairs, by way of trust-right, upon certain trustees; to take place after his death, granting certain annuities and legacies to different persons. Among others he granted £500 to Charles Mill, and, in case he should die before him, to his lawful issue, payable first Whitsunday or Martinmas after his death. And by a codicil, 30th May 1767, he bequeathed to him £500 more,—and declared that any sum he had, or should advance to him, should go in compensation of said legacies.

In August 1767 John Mill lent to Charles, upon his bond, ₤1000, but never exacted any interest.

It so happened that Charles, having gone abroad, in returning from Carolina predeceased John Mill, the testator, by a few days. The question therefore came to be, whether his legacy, on the general principle, had fallen, or if, in consequence of the defunct's codicil, and intention appearing therefrom, compensation took place in settling the legacy against the bond,—or if, in other words, the bond was exigible?

The Lords, 10th July 1777, found it was not exigible. It was allowed to be a questio voluntatis; and they were of opinion that John Mill had done no more than pay the legacy before it was due; and, although he took a bond for it, never intended to exact payment of that bond, but only meant to keep the legatee in decent dependance upon him, lest he should alter.