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Scottish Court of Session Decisions >>
Alexander Hay's Children, Dykes, and Ingles v Hay and Bethia Low. [1692] 4 Brn 15 (7 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040015-0033.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Alexander Hay's Children, Dykes, and Ingles v. Hay and Bethia Low
Date: 7 December 1692
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The children of Alexander Hay, and Dykes, and Ingles, their husbands, against Hay, his heir, and Bethia Low, his relict. The daughters reclaimed against a former interlocutor in June 1692, whereby the Lords found a tutor having lifted a moveable sum and secured it heritably, that this altered the succession, and made it fall to the heir; whereas, formerly it would have belonged to the executor, and that because it was not in bonis defuncti patris, but he was denuded by an assignation. And the daughters alleged he was not fully denuded, in respect the assignation bore a faculty and power to him to alter and uplift, and so it was still in bonis defuncti. But the Lords adhered to their former interlocutor, and preferred the heir, and found the reserved power, never being exercised, did not alter the case. It occurred to the Lords of how dangerous a consequence it might be, if a tutor might, by changing securities, alter the succession; for though a tutor may meliorate the minor's condition, and get additional security for their means, yet it deserves consideration, if this should put the sums out of the natural channel of succession the parent had left it in, and alter his meaning, who of design left moveable sums for his younger children's provisions; and if a tutor should, by getting an heritable security, make these belong to the heir, then he should be more than a father and proprietor, and invert the father's destination, if the daughters had been admitted to the sum.
Then it was alleged for one of them,—That the sum being left to her sister, now deceased, and her in eodem grœmio of an assignation, jure accrescendi, her sister's portion accresced to her, with seclusion of the rest of the children not mentioned in that right, being both re et nomine conjunctœ.
Answered,—There could be no jus accrescendi nor jus non decrescendi here, because they were verbis conjunctœ et non re, the sum being left equally betwixt them. But the heir being preferred, there was no use for deciding this subtile point between the sisters.
