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Scottish Court of Session Decisions >>
Thomson v Merkland. [1630] Mor 5774 (15 January 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor1405774-011.html Cite as:
[1630] Mor 5774
What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. II.
Bonds containing Substitutions. - Bonds bearing Annualrent. - Bonds having clauses of Infeftment. - Bonds assigned before Marriage, though not intimated. - Bond to the Widow's Fund. - Arrears of taxes due by a Minister.
Thomson v. Merkland
Date: 15 January 1630 Case No. No 11.
A bond to a person, whom failing, by decease, to another nominatim, belongs solely to the substitute, and the fiar's relict can have no share of it, even though the institute die before the term of payment.
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The relict having charged for a third of a moveable sum, appointed by the bond to be paid at a term to the creditor, her husband, and in case of his decease, to a person who was his son, therein named, specially the husband creditor having deceased before the term;—it was found, that this, and the like substitutions and provisions to bairns by bonds, in case of the creditor's decease, doing nothing in his lifetime to change the bond, should stand; and that the sum pertained to the person substitute; and that the relict had no part in such sums, nor yet the defunct's executors; and if, at any time, sums be owing by such bonds, and should be ignorantly confirmed, (as this is confirmed), yet the confirmation thereof, where nothing was altered by the defunct, nor nothing mentioned by the defunct's self in testament to declare the change of his mind, should no ways prejudge the person substitute; but here the creditor died before the term.
Act. Lermonth.Alt. ——.Clerk, Scot.
Fol. Dic. v. 1. p. 385. Durie, p. 481.*** Kerse reports the same case:
Bond to a father, and failing of him by decease, to his son, albeit the father died ante terminum, found sufficient to exclude the relict from the third of that bond.
