Scottish Court of Session Decisions

Subject_1 PROVISION TO HEIRS AND CHILDREN.

Waddell
v.
Waddell

1739, Jan. 16.
Case No. No. 3

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A father conveyed his effects to his two children, James and Margery Waddell, equally betwixt them, and failing either of them by decease before marriage or majority to the survivor, their heirs, executors, or assignees. The daughter married, and her husband was said to be very unfrugal, and in hazard of squandering away his wife's means, wherefore the brother, when past the age of 18 years, made a settlement of his half of the succession, which was all in moveables, to his sister in liferent, and her children in fee, and failing children, to certain substitutes, whom he burdened with some legacies, in case the succession should devolve to them. This deed was quarrelled by the sister as ultra vires;—and coming of course before me, I reported it without informations; and the question was, Whether the settlement by the father was a simple destination, which, if it was such, might be altered by the son, though minor, by way of testament, since the subject was moveable; or if it implied a limitation on the children not to alter? and it was agreed, that had their substitution been in general to the survivor, it would not have implied any limitation; but the substitution being only failing any of the children before majority or marriage,—the Lords, the 5th current, found that the son having died minor and unmarried, could not disappoint the father's destination; and this day adhered, and refused a reclaiming bill without answers. I own I was at first against the interlocutor, but since it was pronounced, was not for altering. Arniston was not present at first, but was for the interlocutor, as was the President.