Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. V.
Clause of Return.
Scott of Mangerton v. Scott of Ancrum
1683.
December. Case No. No 29.
A bond of provision was granted with this condition, that if the party died unmarried, the sum should return to the granter. She assigned the debt gratuitously, and died unmarried. The Lords reduced the assignation.
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Sir Francis Scott of Mangerton having granted a bond of provision to Mary Scott his daughter, for the sum of 3000 merks, and in case she should decease unmarried, then the sum should return to Sir Francis, and his heirs; and Francis Scott his son having renewed the bond to his sister, in the same terms, and she having assigned the bond to Sir Patrick Scott of Ancrum, to take effect after her decease, in case she deceast without heirs of her own body; Mangerton pursues a reduction of the said assignation, upon these reasons, that he was creditor by the conditional provision in the bond that in case his sister died unmarried, the sum should return; and the case having existed, she having died unmarried, the bond became null, and she could not make any voluntary or gratuitous assignation in prejudice of that provision in the bond, as was decided the Helen Home against the Lord Rentoun, Sec. 6. b. t., where the Lords found, that a clause providing the sum to return to the Lord Rentoun, failing of his sister and her heirs, behoved to be effectual to the Lord Rentoun against gratuitous and voluntary deeds; and the —— day of February 1679, Drummond against Drummond, No 26. p. 4338.; and the reason is because such a provision in the bond is not properly a naked substitution, but a qualified fee affected with that provision, by which the granter of the bond is constituted a creditor in that event; so that the party to whom the same is granted, cannot do any gratuitous or voluntary deed, to evacuate the same. Answered, That the said Mary Scott the cedent being fiar of the same, she may dispose of it as she pleased, either by way of gratuity, or for an onerous cause; and the foresaid clause can import no more but a substitution and destination of succession in favours of the granter of the bond; and as she might have uplifted the sum and lent it out to other persons, notwithstanding of the foresaid provision, by that same reason she may dispose of it as she pleases; and this being a substitution, the pursuer could not come to the right of the bond but by succession, seeing that clause could not transmit the fee of the sum without a formal right; and if the pursuer have right to the sum by succession, then he must represent the defunct, and consequently be obliged to warrant the defender's assignation. The Lords sustained the reason of reduction, and found, that the defunct could make any gratuitous voluntary assignation in prejudice of Mangerton, granter of the bond, and therefore reduced the assignation.
Fol. Dic. v. 1. p. 308. Sir Pat. Home, MS. v. 1. No 505.
