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Scottish Court of Session Decisions >>
Mrs Amelia Lamont, v The Creditors of Lauchlan and Archibald Lamont. [1789] Mor 5494 (4 December 1789)
URL: http://www.bailii.org/scot/cases/ScotCS/1789/Mor1305494-061.html Cite as:
[1789] Mor 5494
Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. X.
Sum destined to be laid out on Heritable Security.
Mrs Amelia Lamont, v. The Creditors of Lauchlan and Archibald Lamont
Date: 4 December 1789 Case No. No 61.
A legacy declared to be a burden on lands, can be conveyed by a testamentary deed.
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Mrs Grizel Lamont, to whom L. 100 had been left, made her last will and settlement, “whereby she bequeathed to her sister Mrs Amelia Lamont, all goods and gear, of whatever denomination, of which she was possessed, or might be possessed at the time of her death.”
The settlement proceeds in the following words: “And whereas I have reason to believe, that Lauchlan Lamont of Auchagoyle, my brother, has made a deed in favour of certain persons; and in particular, that by the said deed he has burdened his estate with a certain legacy or sum of money to be paid by his heirs, executors, and assignees, to me, my heirs, executors, and assignees; I therefore hereby declare, by this my last will and testament, the said Mrs Amelia Lamont, my sister, to be my sole heir, executrix, and assignee, reserving a power to myself to revoke this deed whenever I think proper.” This settlement was written on paper not stamped.
After the death of the testatrix, Mrs Amelia Lamont obtained a decree of constitution against the Heirs of Archibald Lamont, who was burdened with the payment of this legacy, the sums bequeathed to her sister being included in the same decerniture with those originally due to herself. On this decreet adjudication followed.
It was therefore objected by the common agent in the ranking, 1st, That considering the legacy of L. 100 as a burden on the lands, it could not be conveyed by a testamentary deed; and, 2dly, That the settlement not having been extended on stamped paper, the decreets of constitution and adjudication were ineffectual, and this not only as to the sums bequeathed by Mrs Grizel Lamont, but as to the whole, agreeably to the decision, Apparent Heir of John Porteous contra Sir James Nasmyth, 4th February 1784, No 43. p. 132.
Some of the Judges seemed to think, that the right of the legatee was of a moveable nature, but the majority considered it as heritable. This, however, was thought to be of little consequence, as the deed, though purporting to be a testament, contained such expressions as were deemed fully sufficient for the conveyance of a debt, which, though a burden on landed property, was transmissible by assignment. The objection arising from the writing not being stamped, was considered as one that could be removed at any time.
The cause was remitted to the Lord Ordinary, with an instruction to sist process till the deed was stamped. After this was done, the Lord Ordinary pronounced an interlocutor, repelling the objections which had been stated to the claim of Mrs Amelia Lamont. See Personal and Real.
Reporter, Lord Justice-Clerk.Act. Macleod-Bannatyne.Alt. A. Macdonald.Clerk, Menzies.
Fol. Dic. v. 3. p. 267. Fac. Col. No 96. p. 174.
