Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. IX.
Mutual Substitutions among Children.
Andrew Macreadie v. The Executors of James Macfadzean
Date: 15 November 1752 Case No. No 56.
Found, that a mutual substitution in a bond granted by a father to his two daughters, one of whom was married at the date of the bond, under a prohibition to alienate, except in a contract of marriage, could not be disappointed by the married daughter's general disposition in her prior contract of marriage, of all heritage acquired, nor by her posterior gratuitous alienation to her husband.
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Janet Macreadie, in her contract of marriage with James Macfadzean, does, “with advice and consent of Provost Macreadie, her father, convey to her husband all and sundry lands to which she has now right, and to which she may hereafter succeed, in virtue of any deed made by her said father to her, or to any other of his children.” And further, “she makes her said husband and his foresaids, her cessioners and assignees in and to all debts due to her, and in and to the whole writs concerning the subjects before disponed, both heritable and moveable; and all and every other writ conceived, or which may be interpreted to be conceived, in favours of her the said Janet.”
About a month after this contract of marriage, Provost Macreadie assigned a bond of L. 500 to Janet and Margaret Macreadies, his then only surviving daughters, “equally between them; and failing either of them by decease, without heirs of their bodies, or conveyance in a contract of marriage, to the survivors of them.” And in the same deed he made his said daughters his executors and universal legataries. After Provost Macreadie's death, Janet, upon a recital of her said contract of marriage conveyed to her husband her half of her father's executry, and also of the said bond of L. 500. Soon thereafter she died without issue, and her husband died after her.
Margaret Macreadie assigned the whole sum in the bond of L. 500 to Andrew Macreadie her brother, and soon thereafter she died. After her death a competition arose between the said Andrew Macreadie and the executors of James Macfadzean, for Janet Macreadie's half of the bond of L. 500.
Argued for Andrew Macready; That the mutual substitution of the two sisters in the assignation to that bond, in case of their dying without heirs of their bodies, or conveyance in a contract of marriage, barred both of them from gratuitous alienation.
Answered for the Executors of James Macfadzean; 1mo, The contract of marriage expressly contains acquirenda in heritable subjects, and the words of it cannot well be taken in a more limited sense as to moveables; therefore, that contract alone must carry Janet's half of this bond. The Provost must undoubtedly have considered the contract in this light; for he could never mean to disable Janet, to dispose of this sum, unless her husband should die and she should marry again; this would have been to put Janet, who had married with his consent, in a worse situation than Margaret, who was unmarried, and who might make an unequal match.
2do, The substitution of the two sisters is simple, and each of them is made fiar of one half of the bond. The case is very different from such where there is a clause of return to the granter.
The Court did not seem to lay any stress upon the general assignation in Janet's contract of marriage, but considered her after conveyance to her husband as gratuitous. They held, that the mutual substitution of the daughters implied a limitation on them not to alien; and that it was plain the father meant this, by his making the exception of alienating in a contract of marriage; for, inclusio unius est exclusio alterius. In the next place, as Janet was married when the father made this limitation, it was also plain, he did not intend the sum should go to her husband in the marriage then subsisting. This would imply a contradiction in the substitution; for how could there be a substitution of Margaret to Janet, if Janet's sum was intended to be instantly conveyed to her then husband?
‘The Lords preferred Andrew Macreadie as assignee by his sister Margaret to the whole sum in the bond in question.’
Act. Alex. Boswell.Alt. And. Macdowall.Clerk, Kirkpatrick.
Fol. Dic. v. 3. p. 216. Fac. Col. No 34. p. 54.
