M'Leod v. Leslie

Subject_1 Agreement Subject_2 Bond Subject_3 Conditional Right Subject_4 Obligation to Relieve. Facts: An heir taking the heritable estate of his father executed a bond for £5000 in favour of his sister, she granting in return a discharge of all claims against her father's estate. It was subsequently discovered that the sister was entitled, under her father's marriage-contract, to a provision of £16,000. Held that the sister was not entitled to decree for the £16,000 until she should relieve the heir and his estate of the obligation for the £5000.

The pursuers admit the averments in statement 3 for the defender (to the effect that the late Mr Leslie left only about £1500 of personal property, and no heritable property except Dunlugas) to be true:

And both parties renounce probation, except upon the question, Whether the defender is entitled to be restored against the obligations contained in the bond and disposition in security, dated 31st May 1858, set forth in articles 18 and 19 of the revised condescendence; or to have the sum of £5000 therein contained imputed in payment of any sum which the pursuers may be entitled to recover in this action.”

The Lord Ordinary has considered this question, which is doubtless of great moment and importance here, in relation to and after examination of the various authorities to which he was referred, or which have appeared to him to bear upon the question.

The result to which he has come is favourable so far to the contention on behalf of the defender. It appears to him that, as heir of the marriage, the latter is entitled to claim the heritable estate destined to him on a footing of right not less complete than that under which the younger children claim the provision of £16,000 which was to be secured to them, and that no preference is created in favour of the latter which would entitle the pursuers to succeed in their argument under the fifth plea, as set forth in their behalf.”