Reserved faculties, if they operate in favour of prior creditors? - Reserved faculties are stricti juris.
Anderson v. Anderson
Date: 2 January 1739 Case No. No 23.
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In a disposition to an eldest son, the father having reserved a faculty to burden the disponee with the sum of 4000 merks in favour of a younger son, to be paid at the first term after the father's decease, or the younger son's marriage, did, many years after this younger son was married, exercise the faculty in his favour, by granting him a bond of provision, obliging his eldest son to pay the said 4000 merks, with interest retro from the said marriage. The eldest son objected to the clause of annualrent; and insisted, That there was no debt till the same was created by the father's exercising his faculty, consequently no annualrent retro, which would be accidens sino subjecto.——The Lords found no annualrent but from the date of the deed in exercise of the faculty. See Appendix.
Fol. Dic. v. 1. p. 293.*** Kilkerran reports the same case:
A father having, in the disposition of his estate to his eldest son, reserved to himself a faculty “to burden him with 4000 merks to be paid to a younger son, at the first term of Whitsunday or Martinmas after the father's death, or the marriage of the said younger son, which of them should first happen;” and having, several years after the said younger son's marriage, exercised the faculty, and made the said 4000 merks payable at his father's decease with annualrent retro from the said younger son's marriage, the Lords found, ‘That the father could not subject his son to annualrent sooner than the date of the deed in exercise of the faculty.’
