A son wrote a letter to his father in which he acknowledged he had received from him certain sums of money-‘And I further acknowledge that these various sums are all payments to me on account of the share of legitim or bairn’s part of gear which may become due to me by and through your decease, and which share of legitim or bairn’s part of gear is now discharged by me to that extent.’ On his father’s death the son raised an action of declarator that in the event of his electing to claim legitim he was not bound in a question with his father’s trustees to collate or bring into account any sums paid to him, but that said sums only fell to be collated by him in a question with his father’s other children in the event of their electing to claim legitim, and on condition of their also collating such sums as they had received to account of legitim.
Held that pursuer was not entitled to the declarator sought.
Opinion by the Lord President and Lord Kinnear that this was not, properly speaking, a question of ‘collation.’
Opinion by Lord Johnston that the trustees were, as in right of the children who accepted provisions and discharged legitim, entitled to call on the pursuer to collate with them.
By the Lord President-‘When a father bargains with a son he does not bargain that a certain sum which he has given shall be a payment to account of a possible debt that becomes due after the father’s death . . ; he bargains on account of his estate-general and not on account of a particular debt against his estate, namely, the legitim fund.’
Semble, that the bargain is not solely for the benefit of the dead’s part, any more than it is solely for the benefit of the legitim fund, but that where a son with whom such a bargain has been made claims legitim in order to the more equitable distribution of the actual moveable estate, both legitim fund and dead’s part are calculated from a nominally enlarged moveable estate, i.e., from the sum arrived at by adding to the moveable estate the sum so advanced.
Lord Skerrington, Ordinary
[1909] SLR 296
Bailii
Scotland
Updated: 01 September 2021; Ref: scu.611064 br>