Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. IV.
Mutual Substitution among Children, how far it implies Limitations.
Williamson and Littlejohn v. Littlejohn
1684.
January. Case No. No 20.
A bond of provision was granted to children, with this quality, that if any of them should die, before marriage or majority, the defunct's portion should accresce to the survivors. One of them having died before marriage or majority, the Lords found, that she could not, by a gratuitous deed, disappoint the substitution.
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In the count and reckoning at the instance of Patrick Williamson, and —— Littlejohn his spouse, against Andrew Littlejohn tailzior, No 44. p. 3858., the pursuer having craved the defender might be countable for 3000 merks that was due to the deceast Anna Littlejohn, another of the sisters, and left by her in legacy to the pursuer's wife; alleged for the defender, that the sums contained in the bond of provision being payable to the children at the age of 21 years, or the time of their marriage, which of them should first happen; and it being provided, that if any of the children decease before the age of 21 years, their portions shall accresce to the survivors equally amongst them; so that the said Anna having deceased unmarried, and before the age of 21 years, she could not do any deed, especially a gratuitous voluntary deed, in prejudice of the other children, as is clear by many decisions. Answered, That the said Anna being fiar of the sum, and the provision of the bond being only of the nature of a substitution, she might dispose of the sum as she pleased, either by testament or otherways, especially she being marriageable when she died.——The Lords found, that the deceased Anna Littlejohn could not dispose gratuitously of the bond, in respect of the condition and substitution therein; but sustained the right made by Anna to the pursuer, in so far as concerns her aliment, entertainment, expenses of sickness and funerals, and expenses of confirmation.
Fol. Dic. v. 1. p. 307. Sir P. Home, MS. v. 1. No 550.*** Harcarse reports the same case:
Thomas Littlejohn having granted a bond of provision to his three daughters, with this quality, that if any of them should die, the defunct's portion should accresce to the survivors; one of them dying, disponed her right to another of the surviving sisters. It was alleged for the third sister, That the defunct could not, by a gratuitous deed, disappoint the provisional right of accrescence.
Answered, That the survivors are in the case of heirs-substitute, and so cannot quarrel the defunct's deed.
Replied, The clause is not conceived by way of substitution, in the terms of which failing, &c. but by way of provision, which makes the surviving sisters creditors to the defunct.
The Lords found, that the defunct sister could not, by a gratuitous deed, disappoint the foresaid provision.
