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Scottish Court of Session Decisions >>
Spence v Stevenson and Others. [1766] Mor 8178 (19 July 1766)
URL: http://www.bailii.org/scot/cases/ScotCS/1766/Mor2008178-018.html Cite as:
[1766] Mor 8178
Notwithstanding of a provision in full of legitim, the grantee continuing a bairn in the house, her right to bairns part found entire, as against her father, except in competition with her sisters.
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A bond of provision was granted to a daughter “in full of all she could claim as legitim, bairns part of gear, or otherwise whatsoever; provided nevertheless, that she shall be a bairn in my house, and have a part of my goods and gear the time of my decease, my other daughters being first as well provided.”
The granter had no other daughters; but, by a testamentary deed, he vested his moveables in trustees for behoof of his daughter and her children, payable at their majority or marriage; which, on their death, before either of these events, were to devolve upon certain persons particularly mentioned.
“The Lords found, that the clause in the bond of provision, by which the daughter accepts of it in full of her legitim or bairns part of gear, but under proviso, that she shall be a bairn in his house, and have a share of his effects at his death, his other daughters being first as well provided, imports no more than that she was to have no farther share, until her sisters had got as much as she; so that her claim for her bairns part of gear or legitim, against her father, except in competition with her sisters, was left entire; and that the after settlement, being a mortis causa deed, is not effectual to exclude the legitim.”
Reporter, AuchinleckAct. Montgomery.Alt. Ilay Campbell.
Fac. Col. No 42. p. 269.
