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But although the defenders might constitute their provisions, and obtain personal decree against Michael Bruce, the son and heir, that would not avail them in a competition with the creditors of the deceased, because these provisions were only due to them in the character of the legatees of the father, the granter of the deed, and, therefore, were only due out of the succession deductis debitis.
Pleaded for the defenders—In an action of declarator and payment at the instance of the defender, Miss Bruce, against her brother, the Court found that the provision left by her father formed a real burden on the estate of Glenelg, and that the son was liable in payment to the extent of the estate and effects belonging to his father (Bruce v. Bruce, 13th Dec. 1826); and it being now admitted that the late Mr Bruce was solvent at the time of his death, there is no ground for setting aside the provisions in favour of the defenders, either at common law, or under the statute 1621, c. 18.
If Mr Bruce had died insolvent, the defenders admit that he could not, by a deed in such a form, have conferred upon them any right to the exclusion of his prior creditors; but the case is quite different where the granter of the obligation was solvent at the time. In the case of an obligation undelivered at its date, the only question is, whether the granter was solvent at the date of its delivery, although afterwards the funds may not prove sufficient both for the onerous and gratuitous obligations; Creditors of Dewar v. Dewar, 21st Dec. 1710 ( Mor. 923.)
The Court sustained ‘the bonds of provision granted by the late Mr Bruce to the defenders, to the extent of the reversion of Mr Bruce's funds, as the same shall be ascertained to have existed at the time of his death, and to that extent assoilzie the defenders from the conclusions of the action.’
Lord Gillies , concurring in the opinion expressed by Lord Glenlee in the case of Brown v. Govan, thought that the provisions should be sustained in so far as there was a reversion at the time of Mr Bruce's death.
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