Scottish Court of Session Decisions

Subject_1 FACULTY.

Miss Helen Cunningham
v.
Creditors of Balquhan

Date: 14 November 1739
Case No. No. 5.

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Cunningham of Balquhan having, in virtue of a reserved faculty in the disposition of his estate to his son, (to burden it with 10,000 merks with annualrent after his death, which was repeated in the procuratory and precept, and engrossed in the son's sasine,) by his second contract of marriage provided that sum to the issue, and assigned them to the faculty; and thereafter, by a new deed, having specially assigned the faculty to the only daughter of that marriage ;—the son contracted many debts, some real, some personal; and after his death, the said daughter his sister consanguinean brought the estate to a sale as apparent heir; and then craved to be preferred upon the price for the said 10,000 merks. The Lords all agreed that this 10,000 merks was not a real burden, and that therefore the son's real creditors were all preferable; and yet they found her preferable to all his personal creditors, who had done no diligence to affect the estate. (See Dict. No. 24. p. 4133.)

See Right on Security.

SeeNotes.