Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. II.
Prohibitions, - to alter a Destination, - to uplift without consent.
Strachan of Glenkindy v. Dumbar of Grangehill
Date: 17 December 1714 Case No. No 7.
Although a bond of provision, granted to a daughter bore secluding assignees, yet, she was not thereby precluded from assigning the same to her husband in her contract of marriage.
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The deceased Grangehill, by his bond of provision in favours of Mary Dumbar his eldest daughter, binds to pay to her, her heirs, &c. ‘secluding assignees,’ 8000 merks after her marriage; and in testament, names certain friends, by whose advice his children (who were then minors) should be ordered. With consent of these, she having entered into a contract of marriage with Sutherland of Kilminity, they assigned the apparent husband, his heirs, &c. to the said sum, and he transferred the same to Glenkindy; and it being controverted what the import of the words ‘secluding assignees’ should be, even though there were children of the marriage,
It was alleged for Grangehill, That the assignation could not be sustained, though in a contract of marriage, because assignees were expressly excepted in the body of the writ.
Answered for Glenkindy, that such exceptions were only to be understood to seclude voluntary rights to extraneous persons, and not legal assignees, such as the husband became by the marriage; for if it were otherwise, it would overturn the design of the bond, the cause whereof rendered by the father in the preamble was, ‘for his said daughter's creditable and honest provision, and settlement in the world,’ by which it is plain to have been the father's design that the said sum should go to his daughter nomine dotis.
Replied for the present Grangehill, That the clause in the bond was clear, secluding assignees in general, and therefore there was no ground for the above distinction.
Duplied for Glenkindy, That the above interpretation was sufficiently cleared by the terms of payment in the bond, viz. the one half at the term of Whitsunday, after expiration of year and day of the marriage, and the other half at the next Whitsunday thereafter; so that the very payment to the wife made it belong to the husband jure mariti; and there being no clause obliging the husband to re-employ (which the father would have done if he had designed the fee of the money to have for ever continued with her heirs), he justly claims the yearly annualrents even after the marriage, with as good ground as the prinpal sums, both being provided and payable in the same manner.
‘The Lords found, that though the bond of provision to the daughter secludes assignees, yet that did not hinder her to assign the same to her husband by contract of marriage; and therefore found the defender liable, and repelled the defences.’
Act. Horn.Alt. Se.Clerk, Roberton.
Fol. Dic. v. 1. p. 305. Bruce, v. 1. No 22. p. 30.
