My Lord Newark having made a bond of provision to his six daughters, payable at their respective ages of 15 years, and to the heirs of their bodies, and the proportion of such as should die without heirs of their body, to accresce to the surviving sisters; one of the sisters assigned her provision to their mother; and in a competition with the mother and the rest of the sisters, it was alleged for the sisters, That the substitution imported that the defunct could not gratuitously assign, seeing the provisions were small, and the father considered that they might be bettered by the hazard of the substitution.
Answered, The substitution in favour of the survivors being conceived by the clause which failing, and not by a separate clause, nor in favours of the heir of the family; which is the case of some practicks, as that of Riccarton, No 26. p. 4338. Craigs, &c.
The Lords sustained the gratuitous assignation.——This is not clear, it being a qualified fee, as to lucrative deeds.
Fol. Dic. v. 1. p. 307. Harcarse, (Bonds.) No 212. p. 48.
