A clause of entail, empowering the heir of tailzie to provide wives or husbands in liferent, to the extent of a third, found sufficient to empower the first institute, and the next apparent heir jointly, to settle a third upon the wife of the said next apparent heir.
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Lady Schaw entailed her estate of Carnock, and certain annuities, which were afterwards found to amount to L. 2026, in manner mentioned in the decision voce Tailzie, upon her daughter Lady Houston as institute.
This entail contains a clause, declaring, “That the said Lady Houston, her heirs of tailzie, shall have power, each of them, to provide their respective husbands and wives in a competent liferent out of the foresaid estate not exceed tag a just third of the rents thereof, by way of locality, which is to be in full them both of courtesy and terce.”
By an after clause in the end of the entail, she appoints her daughter to employ the annuities to buy lands and annex the same to the entailed estate “and take the rights to herself and the heirs of tailzie, under the same provisions, conditions, declarations, clauses irritant and resolutive, above expressed.”
In the year 1744, Sir John Houston, apparent heir to Lady Houston in the estate of Carnock, was married to Miss Cathcart; and, in the contract of marriage, Lady Houston disponed to Sir John her estate of Carnock, and Sir John granted his Lady a liferent infeftment of a third of the said lands, and became bound to pay her a further annuity of 1600 merks yearly:
“And for her further security of the said annuity, Lady Houston assigned to her a third part of the yearly interest of the L. 2026, at that time lying in Lord Napier's hands, upon heritable security.”
And on the other part Miss Cathcart “assigned to Sir John her bond of provision of L. 2000, L. 500 thereof to himself simply, for his own behoof, and the other L, 1500 to him in trust, for her security of the liferent annuity of 1600 merks yearly and of the provisions stipulated to the daughters of the marriage; and after these, are satisfied, to Sir John for his own use and behoof.”
Lord Napier having paid up the L. 2026 to Lady Houston, she lent it out to sundry debtors upon personal bonds; and having executed a general disposition of all her effects to Mrs Cunningham of Enterkin, she, burdened her with employing the L. 2026 in terms of the entail.
Lady Houston and Sir John being both dead, Mr Houston of Johnston, Sir John's executor, brought a process, concluding, That Mrs Cunningham should ley out the L. 2026 in terms of the entail to the end that a new right and security might be granted to Sir John's widow, to the extent of a third part of the interest of that sum, and that Steuart Nicolson, the heir of entail, should be decerned to relieve him the pursuer, of the said annuity to that extent.
Pleaded for the heir, 1mo, Lady Houston had no power by the entail to burden the lands with any annuity. She was married, and the mutual provisions betwixt her and her husband ascertained before the entail was made: This faculty of granting liferents is therefore confined to heirs of tailzie; no Such power is given, or meant to be given, to her the institute,
2do, The faculty of burdning with the liferent extends only to the entailed estate of Carnock; for it is declared, That a locality of a third part of that estate shall be in full of both courtesy and terce. And, if this money were fixed down under such a burden, the purpose of the entailer to have it laid out in purchasing land's must be disappointed.
3tio, This faculty could not be used by Lady Houston in favour of the wife of her son. The heirs are allowed to provide their respective husbands and wives in liferents, but not the husbands or wives of their apparent heirs.
4to, Sir John, by his contract of marriage, is clearly the principal debtor in the additional annuity of 1600 merks; Lady Houston's interposition in favour of the young Lady is only for her further security; it cannot relieve the principal debtor or his representatives. On the contrary, Sir John's executor must relieve and disburden the L. 2026, as Sir John has left enough to pay all his debts.
Pteaded for Mr Houston in answer to the first, Lady Houston, acting in concert with her son Sir John, who was an heir of entail, and was empowered by the entail to give his wife a liferent, did not exceed her powers in granting the security now in question.
To the second, The L. 2026 is to be settled under the same provisions and conditions with the estate of Carnock.
To the third. That Lady Houston could dispone her whole estate to her son, who was alioqui successurus; she might therefore, a fortiori, give this liferent to his widow. 2ui potest majus potest minus.
To the fourth, No traces of a principal and fidejussory obligation can be discovered in this marriage contract; there is a personal obligation upon Sir John, and a real security granted by Lady Houston, and the personal obligation must be absorbed in the real security. If it were not so; in every heritable bond the heir of the debtor would be entitled to a relief against the executor, as these bonds, in their usual style, always begin with a personal obligation to pay; and, for the creditor's further security, the debtor becomes bound to infeft him in particular lands; yet unquestionably such bond belongs to the heir of the creditor, and must be paid by the heir of the debtor.
It was further insisted for Mr Houston; That Sir John, by surviving his mother, became creditor in this entailed money, which vested in him without a service; and as after his mother's death, he had undoubted power to grant this liferent provision to his Lady, his succession as jus superveniens must operate retro to render valid that liferent provision which his mother, with his consent, in his own marriage contract, had granted.
To this it was answered, Sir John's survivance could not establish a right in him to this entailed subject without a service. And, separatim, jus superveniens to a consenter will not confirm the right consented to, although it may be otherwise ubi jus supervenit to the principal disponer.
“The Lords found, That Lady Houston had power to provide the wife of her son the apparent heir, in his contract of marriage, in a jointure to the extent of a third part of the entailed money, and that the Representatives of Lady Houston are bound to implement the said obligation.”
Act. Craigie, Lockbart et Wallace.Alt. Ferguson et Steuart.Clerk, Forbes.
Fol. Dic. v. 3. p. 129. Fac. Gol. No 182. p. 271.
