Scottish Court of Session Decisions

Subject_1 SUCCESSION.
Subject_2 SECT. III.

Succession a testato.

Ross
v.
Ross

Date: 2 March 1770
Case No. No. 49.

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Alexander Ross, solicitor in London, was proprietor of the lands of Little Daan and Muyblairie, in the shire of Ross, together with several heritable bonds on lands in Scotland, to the amount of some thousand pounds, besides personal property. He died in 1753, leaving a holograph deed of settlement, by which, on the narrative of love and favour to Elizabeth Ross his daughter, and in consideration of her dutiful behaviour and virtuous conduct in life, he resigns his lands of Little Daan and Muyblairie in favour of himself, and failing him, the said Elizabeth Ross and the heirs of her body; whom failing, his other nearest lawful heirs or assigns whatsoever; providing, “that David Ross, my son, is not hereby intended to be called to the succession of the said lands, under the description of heir whatsoever, but is hereby for ever excluded” and thereafter he declares, “That the said Elizabeth Ross shall be bound to pay to the said David Ross the sum of one shilling, on the first day of every month of May yearly, that being his birth-day, thereby to put him in mind of the misfortune he had to be born.” Then follows a clause, assigning and disponing to his daughter and her aforesaids, all goods, gear, debts, sums of money, corns, cattle, insight plenishing, and other effects, of what nature or kind soever, belonging to him at the time of his death and assigning to her all charters, dispositions, writings, rights, titles, and securities whatsoever of and concerning the lands and others foresaid. In consequence of this settlement, Elizabeth and her husband, Hugh Ross, took possession of the whole property, heritable and moveable, of her father, after charging her brother David to enter heir and convey, and obtaining decreet of constitution and adjudication against him to that effect. In 1769, David Ross, then in Scotland, brought an action in the Court of Session for setting aside this decreet obtained against him in absence, on the ground, that the settlement of his father, though effectual to convey to his sister the personal estate and the lands of Little Daan and Muyblairie, did not convey the other heritable subjects, viz. the bonds above mentioned, which must of consequence fall to him as heir at law.

Urged in defence, That this was purely a question of intention; that the testator's will to exclude the pursuer was evident in every part of the deed; and, moreover, that the bonds claimed were conveyed under the general words of “all effects, of what nature or kind so-ever.”

Replied, That the law of Scotland does not authorise the disinheriting the heir by mere words of exclusion. It can only be done by express conveyance of the inheritance to another, which was not done with respect to the heritable bonds in question. Neither can these fall under the general clause of all effects whatsoever; for this clause plainly related only to the personal estate, and followed the description of goods, gear, debts, &c. whereas, had the testator meant to convey those heritable subjects, it would have been done along with the other heritage, and in express words.

The Lords found, That nothing was conveyed to Elizabeth Ross except the lands of Little Daan and Muyblairie, and the moveable effects of the deceased; and that the general clause is not sufficient to convey the bonds in question; they therefore sustained the reasons of reduction.

This judgment was affirmed on appeal.

Fol. Dic. v. 4. p. 306. Fac. Coll.

*** This case is No. 15. p. 5019. voce General Assignation.