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Scottish Court of Session Decisions >>
Mrs. Anne Gilmour, v Sir Alexander Gilmour of Craigmiller, her Brother. [1704] Mor 14851 (24 November 1704)
URL: http://www.bailii.org/scot/cases/ScotCS/1704/Mor3414851-015.html Cite as:
[1704] Mor 14851
Mrs Anne Gilmour, v. Sir Alexander Gilmour of Craigmiller, her Brother
Date: 24 November 1704 Case No. No. 15.
Effect of a conditional clause of return.
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President Gilmour, by his bond of provision, obliged his heirs to pay Mrs. Anne, his daughter, first 10,000 merks, and then 2000 merks more, at her age of fifteen, but with this quality, that if she died before that term of payment, or before year and day after her marriage, in that case, the principal sum should return to his heirs, and the provision expire and be extinct; but so it is, though she be past fifteen, yet she is not married, and so has no right to uplift the principal sum,as Sir Alexander expounded the clause. Alleged, for Mrs. Anne, That this quality of return, in case of her not marrying, was but of the nature of a substitution of his son eo casu; whereas in law substitutions do not hinder her, as fiar, to uplift and dispose freely upon it at pleasure; and that the Lords had decided so in a parallel case, Helen Home contra the Lord Renton, No. 41. p. 4377. voce Fiar Absolute, Limited. Answered, Such clauses barred her from doing any voluntary gratuitous deed to the prejudice of her brother's succession thereto, in case of her dying before marriage; and that she understood it so, appears by a declaration she gave in 1694, obliging herself to do no voluntary deed, nor to make any gratuitous right or assignation thereof. Replied, This annual-rent is not sufficient to maintain me, according to my quality; and therefore I will bargain with some who will buy the stock, and give me an annuity of double annual-rent during my life, to make me subsist more comfortably, upon their getting the stock at my death. Duplied, by her brother, He was willing to settle an annuity upon her as any other; and if 12 per cent. were judged too little, he would give more, and take his hazard. The Lords thought her creditors might affect the sum, though she could not gift it away for nothing; and that in such bargains of hazard, her brother offering more ought to be preferred to any stranger; and therefore recommended to the reporter to endeavour to settle them, either by stating an annuity or otherwise.
The Lords at last having advised this case, they found she had right to uplift the sum; but she behoved to re-employ it in the terms and with the qualities of her father's bond, and her own declaration, not to dispose upon it gratuitously. See 28th February, 1683, Barclay, No. 6. p. 4311. voce Fiar Absolute, Limited.
