Faculties when effectually Exercised. - Effect on Heirs. - Effect on Singular Successors. - Competition of Creditors claiming under Reserved Faculties.
Hope-Pringle v. Hope-Pringle
Date: 21 June 1677 Case No. No 12.
A person having disponed his estate to his son, reserving power to himself to burden it to a certain extent, and thereafter granting a bond to his daughter without mention of that power, the bond was found to affect first his moveables, and then his lands by the reservation.
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Hope-Pringle having disponed his whole estate to his eldest son with reservation to him to burden it with a liferent to his second wife, or with wadsets or annualrent to any person, not exceeding 5000 merks, he had thereafter a daughter of the second marriage, to whom in anno 1636 he granted a bond of 1000 merks, who now pursues the heir of the eldest son for declaring it to be a burden upon the estate disponed with the reservation foresaid. It was alleged, that this bond could not burden, because the reservation being only a faculty, and in a specific form, the same was never exercised, for neither doth this bond relate to that reservation, nor hath it any obligement to infeft, but only a personal obligement to pay annualrent, as well infeft as not infeft. It was answered, that the specific way of burdening was not taxative; and if the father had granted this daughter a tack redeemable by this sum, or an assignation to the duties, it would have been sufficient; or if the daughter had apprissed from the father omne jus, and he had thereafter burdened it by infeftment or annualrent for 5000 merks, the son might justly have said, that by the prior bond, tack, or assignation, the faculty was in so far exhausted, and the posterior burden could only be effectual quoad reliquum. It was replied, that here is only a personal bond for money, without any relation to the reservation, and though the intent of the father should be considered, and his conjectured will expiscated, it cannot be thought he meant to burden his son, but only his executry, because it is offered to be proven, that he had an executry far exceeding this bond, the time he granted it.
The Lords found, that the presumed will of the father by this bond was, that it should burden his executors in the first place, and the son's estate in the second.
Fol. Dic. v. 1. p. 291. Stair, v. 2. p. 527.*** Dirleton reports the same case:
The Laird of Torsonce having disponed his estate to his eldest son for love and favour, with a provision contained in the disposition, that it should be lawful to him to burden the saids lands by wadsets of the same, or annualrents furth thereof, for the sum of 5000 merks redeemable by his son, and having thereafter granted a bond to a daughter of a second marriage, of 1000 merks, who did pursue the Representatives of the son, for the said sum, it was alleged for the defender; That he could not be pursued personally; but if there were any ground of an action, it would be only for a declarator, that the lands are liable to the said debt. 2do, That there could be no ground of declarator, in respect the disponer had not made use of the said faculty, nor granted a wadset for the said sum; and that the defunct had a personal estate and executry; and in so far as he had not, conform to the said faculty, secured the pursuer out of the said lands, he had declared his intention, not to make use of the said faculty.
The Lords found, that the pursuer ought to discuss the executry, and any other estate belonging to the disponer; and if the said sum could not be recovered out of the personal estate, that he might have recourse against the said lands; which was found by the Lords, upon these considerations, viz. That the right made by the father being for love and favour, the said reservation ought to be interpreted benigne, and it was to be considered quid actum; the father's intention being to have a power to contract as much debt as might amount to the said sum; and eo ipso that he did grant the said bond, he did burden the said lands virtually, and in his own time they might have been comprised for the said sum; and therefore may be now affected and comprised. 2do, The father's end being to have power to burden with the said sum, the modus and way was insert ex stylo by the writer; that which is mentioned in the disposition being the most ordinary, and therefore to be understood demonstrative but not taxative. 3tio, Though some of the Lords were of opinion, that the pursuer may immediately, as other creditors, have recourse against the estate; yet it seemed to be reasonable, that in this case, the reservation being in the terms foresaid, and the bond whereupon the security was founded, not relating to the same, the executry should be first discust, seeing by the common law the executry was ever first liable; and though, by the Lords practice, creditors may pursue either the heir or executor, yet there being such a speciality in this case, and the defender not representing personally the grandfather, as heir, or otherways by progress, his representatives ought to be first discust, and the said lands to be liable only in subsidium.—In præsentia.
Act. Sir George Mackenzie, & Robert Stewart.Alt. Lockhart & Pringle.Clerk, Gibson.
Dirleton, No 457. p. 221.
