Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. V.
Clause of Return.
L Tilliquhillie v. L Leys.
Date: 7 February 1666 Case No. No 24.
A father provided a younger son in a sum, and for his better payment let to him a tack, with provision, that if the son should die unmarried, the said sum and tack should return to the father, and his heirs male; but if he should decease within year and day after his marriage, but without heirs male of this body, that the right thereof then should be equally divided among his brothers and sisters. The Lords found, that the sum and tack might be comprised from the son for his own debt, notwithstanding the above conditions.
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Umquhile Sir Thomas Burnet of Leys, did give in patrimony to his son James Burnet the sum of 10,000 merks Scots; and for his better payment set to him a tack of the lands of Colliscore and others, with provision, that if the said James should die unmarried, the said sum and tack should return to the said Leys himself, and his heirs male; but if the said James should decease within year and day after his marriage, but without heirs male of his body, that the right thereof then should equally be divided amongst his brethren and sisters-german. The said James being major, but unmarried, is debtor to Sir Robert Douglas of Tilliquhillie, who comprised the right of the said tack for satisfying of his debt, and the sum of 10,000 merks provided, as said is; and thereupon pursues a declarator against Sir Thomas Burnet, now of Leys, heir by progress to the granter of the tack, and the said James, his other brethren and sisters, and craves the said sum may be declared, with the right of the said tack, to belong to him, as having comprised in manner foresaid.—— The Lords found the compriser had right to the sum and tack, notwithstanding of the provisions and conditions therein contained, which they found did not prejudice the said James of his right of dominium thereto, but that he was absolute dominus of the said sum and tack; and that as he might have disponed upon the same, so it might be comprised from him by his creditors. This case reported the foresaid day, but did not receive the Lords interlocutor till several days after.
