“Whereas by my will, my estates, real and personal, will fall to my brother David, and his heirs, and whereas, on failure of the heirs of his son, my nephew Patrick Moncreiff of Redie will succeed to the said property, now I do hereby direct, that in case the said Patrick Moncreiff, my nephew, does succeed to the said property, it is my will and orders, that he does immediately, on such succession taking place, pay over to his brother, Captain George Moncreiff, of the 11th regiment of foot, the sum of L. 4000, for the purpose of promoting him in the line of his profession, or at his own option; and that he likewise release, acquit, and discharge him of and from all and every debt which now is or may be due by the said Captain George Moncreiff to his said brother, Patrick Moncreiff of Redie; and it is my will and orders, that this codicil may be equally binding upon the heirs, executors, and administrators of my nephew, Patrick Moncreiff, as it is upon himself.”
“Finds, that the entail and relative disposition executed by General Philip Skene, both of the same date, are to be considered as parts of the same general settlement: Finds, that ex figura verborum, as well as by the evident intention of the granter, his debts were to be paid out of the subjects conveyed by the disposition, without relief from the entailed property: Finds, that though the heritable bond granted to Sir Hector Monro, after the settlement, extends over both for the benefit of the creditor, this makes no alteration on General Skene's succession under the deeds which regulate the payment of his debts as at his death: Finds, that the late Mrs Helen Skene, having taken up both the entailed and unentailed property, was bound to relieve the entailed estate of the bond in question, and that that burden now devolves on the defender, as her gratuitous disponee; and decerns and declares accordingly: But finds, that by the second codicil executed by General Skene, the pursuer, in case of his succeeding under the general settlement, the event which has happened, was bound to pay the defender L. 4000 sterling, and also to discharge the debts due by the defender to his (the pursuer's) father: Finds, that this obligation does not depend on the value of the unentailed property to be inherited by him, so that as, if the late Mrs Skene's debts had exhausted said property, the codicil would still have been effectual, it cannot be lapsed from her exerting any faculty competent to her under the settlement; and therefore finds the defender entitled to the benefit of said codicil, and so far assoilzies him from the present action, and decerns.”
“The Lords find, that the appellant is not bound to relieve the entailed estate of the debt of L. 16,000, with interest, but that such debt ought to be borne and paid by the respondent and the appellant, rateably, and in proportion to the several estates charged therewith: And the Lords further find, that, in the events which have happened, the bequest of L. 4000 is not exigible or demandable from the appellant in the cross appeal; nor is he bound to release and discharge the debts due at the date of the codicil, or since, from the respondent to the father of the said appellant in the cross appeal: And it is therefore ordered and adjudged, that the interlocutors complained of in the said appeals, so far as they are inconsistent with these findings, be reversed: And it is further ordered, that the cause be remitted back to the Court of Session to proceed further therein according to this judgment, and as shall be just.”