Faculties when effectually Exercised. - Effect on Heirs. - Effect on Singular Successors. - Competition of Creditors claiming under Reserved Faculties.
Hamilton of Silvertonhill v. His Sisters
Date: 29 June 1624 Case No. No 8.
An heiress infeft her son upon resignation, reserving to herself a faculty to dispone an yearly annualrent out of the land to her daughters. She executed a charter in favour of her daughters, containing precept of sasine, but neither delivered it nor infeft them. The Lords found the subscribing the charter to be a sufficient exercise of the faculty.
Click here to view a pdf copy of this documet : PDF Copy
Francis Hamilton of Silvertonhill younger, being infeft in the lands of Provand in fee, upon his mother's resignation, who was heretrix thereof, with special provision contained in his infeftment, that it should be lawful to his mother to dispone in her own lifetime an annualrent of 800 merks yearly out of the said lands to her daughters, for the help of their marriages, redeemable upon 8000 merks; whereupon she having made and subscribed a charter to them, after the said fee granted to her said son, but no sasine being taken thereupon while she lived; after her decease the daughters pursue the said Francis, whose fee was affected with the said provision, to give them a precept, whereby they might take sasine, conform to the foresaid charter made by their mother in their favour. This action was sustained against the said Francis, and he was ordained to grant and subscribe a precept of sasine in their favour; albeit it was alleged by him, That the provisions foresaid, contained in his fee, reserved a liberty to his mother to provide the said daughters; which liberty not being used in her lifetime, nor the deed perfected by her, which she might have perfected, if it had been her intention to have made a complete and profitable security to them, which she hath not done, and so hath not clad her with that liberty which she had; for a charter, whereupon no sasine followed in her lifetime, it is not a valuable right; specially seeing she lived by the space of nine years after the date of the charter, during the which space no sasine was taken, but the charter remained beside herself; whereas, if she had intended valuably to have secured the pursuers, she would have delivered the charter, and given sasine to them while she lived; which not being done, the action becomes extinct, and the defender cannot be compelled to fulfil the same.——This allegeance was repelled, in respect the Lords found, That this subscribing of the charter by her, was sufficient to give to the daughters that right which was reserved to her; and the not taking a sasine thereupon was not her deed; for, by the charter containing precept therein, she was denuded, and the sasine might be taken when the daughters pleased; which not being taken while she lived, the said charter being now in the pursuer's hands, was a sufficient ground to compel the defender to make a precept, whereby they might be seased.
Act. Cunninghame.Alt. Hope.Clerk, Scot.
Fol. Dic. v. 1. p. 290. Durie, p. 131.
