Liberty of Disponing without Consent. - Making Provisions a Burden on Lands. - Obliging to lay out on Sufficient Security. - General Abrogatory Clause in an Act of Parliament. - Relieving from Public Burdens.
Elspeth White v. Bessie Moor
Date: 9 December 1724 Case No. No 62.
A person took a disposition to himself and wife in life-rent, and his children in fee; reserving power to dispone away, with consent of his wife Found he could not dispone gratultously in prejudice of the liferent.
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Patrick White. sometime after marriage with Bessie Moor, purchased a tenement in Aberdeen; and there being no contract of marriage betwixt them, he took the rights thereof to himself and wife in liferent, and to the heirs of the marriage in fee, but with special provision and condition, “That it should be lawful for him to burden the said houses with any sums of money, less or more, that he should happen to borrow from any person or persons, or with any bond of provision to his children, or to dispone the same to any person he should think fit, without consent of his said spouse, or heirs procreate, or to be procreate betwixt them, as freely as if no such provision had been made in their favours.”
Of this marriage there was one daughter, who, after her father's decease, produced an absolute disposition from him of the foresaid tenement in her favours, and upon it craved to be preferred to her mother's liferent-right, alleging, That though the husband had provided her in such a right, yet by the conception thereof he had retained to himself a faculty of disponing the liferent-lands to any person he pleased; and that accordingly he had exerced that faculty by the conveyance made in her favour.
It was answered for the relict, 1mo, That by the reserved faculty no more was intended, than that the husband should have a power to dispone for onerous causes, as appeared from the words of the clause, viz. of burdening the houses with sums of money borrowed, or provisions to children: Therefore since he had a restricted himself from burdening, except for payment of borrowed money or provisions to children, he could not be said to have retained the absolute power of disponing, according to the principle, cui minus non licet, nec plus licet. 2do, By the husband's reserving a power to dispone without consent of the heir, it appears, that he had it not in view to reserve a power of disponing, except in such cases where the consent of the heir Was necessary, which never could be to a disposition in her own favour.
The Lords found, That the husband could not, in virtue of the reservation contained in his right, dispone the lands gratuitously in favour of the daughter the fiar, in prejudice of the liferenter; and therefore preferred the relict.
For the Rediet, Garden.Alt. Ja. Fergusson, sen.Clerk, M'Kenzie.
Fol. Dic. v. 3. p. 131. Edgar, p. 128.
