Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Bonnar
v.
William Arnot

1683. February.

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A father having assigned a bond to his wife in liferent, and to their daughter, and the heirs of her body in fee; which failing, the one half of the fee to the wife, and the other half to his own brother:—by a distinct clause, in case the daughter died without bairns, the father, per verba de presenti, disponed the money to his wife and to his brother, by equal portions. The daughter having chosen a curator, left the sum to him in legacy at her death; which was questioned by her uncle, because she could not disappoint, by her testament, the conditional assignation in the last clause, which existed. Answered, The testator, being fiar by the conception of the assignation, she might dispose of the sum, although, by the last clause, the mother and uncle might have succeeded thereto, ab intestato, without a service. Replied, The testator could only have spent it, or disposed on't for onerous causes; and 'tis usual for parents, in bonds of provision to their children, to adject a quality, that the money should return, in case of their decease before such an age, or unmarried; which bonds the Lords have often found, particularly in the case of the children of Laureston, could not be assigned without an onerous cause. The Lords sustained the legacy left by the daughter, February 1683. But the contrary was afterwards determined in this cause, viz. That the daughter could not legate sums in prejudice of her mother and uncle, who were substitute to her. Vide No. 354, [Bonnar against Arnot, February 1683; Dict, p. 12,976.]

Page 41, No. 185.