Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. III.
Simple Destination.
Stewarts v. Sir Thomas Kirkpatrick of Closeburn
Date: 19 December 1735 Case No. No 16.
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Stewart of Revenston, creditor in an heritable bond of 19,500 merks, made a settlement of it upon his four daughters, their cessioners and assignees, equally amongst them, and the respective heirs to be procreated of their bodies; which failing, to Stewart of Castle-Stewart, with power to them and their foresaids; which failing, Castlesttewart and his foresaids, to uplift and discharge the same. Helenor the eldest daughter, having made a gratuitous assignation of her share to her husband during the marriage, and, dying without issue, the question occurred betwixt the husband of the defunct and the other sisters, which of them had best right to this share? For the sisters it was pleaded, That there was here an implied reciprocal substitution of the four sisters to one another; and failing of them all, to Castlestewart, which no gratuitous deed done by any of them could disappoint. Answered, for the husband, The granter, no doubt, intended his daughters to succeed to one another, preferably to Castlestewart; but as he saw the legal succession would have this operation, he left them to succeed to one another as heirs of line, which will never imply any limitation upon any of the sisters, especially where the right is granted to them, their heirs and assignees. The Lords found, there was no such substitution in the right as to deprive any of the daughters of the free disposal of their respective shares, and therefore sustained the assignation. See Appendix.
