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Scottish Court of Session Decisions >>
Catharine Gerran and her Husband v John Alexander of M'Kilston. [1781] Mor 4402 (14 June 1781)
URL: http://www.bailii.org/scot/cases/ScotCS/1781/Mor1104402-055.html Cite as:
[1781] Mor 4402
Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. VIII.
Provisions by Parents in contemplation of Marriage of their Children.
Catharine Gerran and her Husband v. John Alexander of M'Kilston
Date: 14 June 1781 Case No. No 55.
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A last will was expressed in the following manner:
“I leave to Catharine Gerran, spouse to James M'Ghie merchant in Stranraer, the sum of L. 300 Sterling in liferent alimentary, and to be divided by her among her children at any time before her death; and, failing of her dividing the above sum, it is to be divided by the heirs and representatives of the said John Alexander, the testator, as they shall think proper.”
It became a question upon this clause, how far the mother could affect the legacy? and ‘the Lords found unanimously that she had only a right of liferent.’
The Lord reporter observed, that by many decisions, it had been found that the fee was really in the parents, though the destination bore only in liferent to them, and in fee to their children; but that this was not ex necessitate, as had sometimes been supposed, lest the fee should be in pendente. It was upon the presumed will of the granter, who only meant a spes successionis to be in the children; and, therefore, whenever there appeared to be intended a right of property in the children, the parent's right was either limited to a mere liferent, or considered as a trust fee, which could be defeated.
Reporter, Lord Braxfield.Act. ——.Alt. James Boswell.
Fol. Dic. v. 2. p. 215. Fac. Col. No 56. p. 96.
