Scottish Court of Session Decisions

Subject_1 FIAR, ABSOLUTE, LIMITED.
Subject_2 SECT. II.

Prohibitions, - to alter a Destination, - to uplift without consent.

Grahame
v.
The Laird of Morphie

Date: 8 July 1673
Case No. No 4.

A bond of provision was granted to children, in these terms, ‘That, in case they died unmarried, or within year and day thereafter, that the sum should return to the granter's heir, and that they should make no assignation or other right in defraud of his heir.’ This clause was found to import, that the children could do no gratuitous deed, but that it did not hinder them to uplift for necessary causes.

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The deceast Laird of Morphie granted a provision to his five children of 25,000 merks, but in these terms, “That in case they died unmarried, or within year and day thereafter, that the sum should return to his heir; and that they should make no assignation, or other right, in defraud of his heir.” Whereupon he alleged, He was not obliged to pay any more but the annualrent, this being a clause adjected by the father de non alienando. It was answered, That here was no clause irritant, but a substitution of the heir, in case the bairns were not married, and had no children, and doth only exclude assignations, or other rights, but doth not hinder the children to uplift the sums.

The Lords found, that the clause did import that the children could do no gratuitous deed, or any thing to defraud the heir, but found that the children, for a necessary cause, such as their breeding to letters, merchandize, or trade, might dispose of so much of the sums as was necessary; and that the making of no right in defraud of the heir, did import that they could neither uplift nor assign further than necessity required.

Fol. Dic. v. 1. p. 305. Stair, v. 2. p. 206. *** Gosford reports the same case:

In the aforementioned action, No 10. p. 4100. at David Graham's instance, as assignee by two of his brethren for payment of their proportions of 25,000 merks, amounting to 5000 merks a-piece, it was farther alleged for Morphie, That the pursuers could not crave payment of these sums; because, by the reservation in the contract of marriage, they were only payable a year after their marriage; and in case they should die within year and day without children, that the provision should return to the defender their eldest brother; and that it should not be lawful to dispone thereupon to defraud him of his succession thereto; so that they, not being married, could not assign or uplift the money, unless they found caution to re-employ the same, in the terms foresaid. It was replied, That, notwithstanding of the said clause of provision, the children did remain fiars of their portions, and their eldest brother had only the right of substitution, which could not hinder them to contract debt, or to assign the same for a just and onerous cause; and there being no clause irritant, the meaning of that clause could only be, that, in case of marriage, and that if they died without children, they should not be enticed to dispone their portions without any onerous cause.—— The Lords, after much debate among themselves, did sustain the pursuit, in so far only as the assignation was for a just and onerous cause, to be condescended on and instructed, being moved thereto upon this consideration, that the children's portions being but mean, and the annualrent thereof not able to entertain them in necessaries, so that to breed them as scholars, or merchants, in any liberal calling, there was a necessity to uplift of this principal sum, or to assign or dispone thereupon, the said condition annexed to the payment could not hinder them, neither could be the meaning of the parent, seeing it did only instruct them, in the case of marriage, and dying without children, not to dispone; but did not hinder them, when they were majors, after majority, in case they should not marry, to make use thereof for their breeding and education. Likeas, in a late case betwixt the deceast Lord Justice-Clerk, and his Sister, Sect. 6. h. t. wherein the same point of law was debated, the Lords did give their decision in the same terms, and upon the same grounds.

Gosford, MS. No 613. p. 355.