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James, William, &c. Moffats, v Walter and Bessie Moffats. [1724] Mor 4321 (6 February 1724)
URL: http://www.bailii.org/scot/cases/ScotCS/1724/Mor1104321-013.html Cite as:
[1724] Mor 4321
Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. III.
Simple Destination.
James, William, &c Moffats, v. Walter and Bessie Moffats
Date: 6 February 1724 Case No. No 13.
A person granted a disposition of his effects, with this provision, “that if any of the disponees should decease without children, the share of the deceased should accresce to the survivors.” One of the disponees having assigned his right, and died without children, the assignation was reduced.
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James Moffat having granted a disposition of his effects, with this provision, “That if any one or two of the disponees should decease without children, the share of the person or persons so deceasing, should accresce and fall to the surviving and their children,” under which provision the disposition is declared to be granted by James, and accepted by the disponees,
It happened that Isabel Moffat, one of the disponees, assigned her right, and died without children: The question was, If by any gratuitous deed she could disappoint the foresaid provision?
It was alleged for Isabel's assignee, That the clause mentioned in the disposition was no more than a simple destination of succession; and though there was a substitution in a certain event, yet since there was no clause not to alter, it only entitled the substitute to the succession, in case she had not otherwise disposed of her share, but imposed no limitation on the institute to hinder her from disposing of the subject, or altering the substitution at her pleasure.
It was answered, 1mo, That by the conception of the clause of substitution, the right of the disponees was no more than a conditional fee. 2do, That in this case, where the provision of substitution is made the quality of the conveyance, the substitution could not be altered; for, by the conception of the writ, the institute by his acceptance becomes obliged, ex pacto, to re-convey to the substitute, in case of the existing event.
The Lords found, That Isabel could not dispone gratuitously, and that her share accresced to the surviving disponees.
Reporter, Lord Polton.Act. Pat. Grant.Alt. Ja. Boswell.Clerk, Mackenzie.
Fol. Dic. v. 3. p. 214. Edgar, p. 24.
