Scottish Court of Session Decisions

Subject_1 FIAR, ABSOLUTE, LIMITED.
Subject_2 SECT. VI.

Where there is a clause of return, must caution be found to re-employ the money, if uplifted?

Irvines
v.
Irvine of Drum

Date: 29 December 1725
Case No. No 45.

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Alexander Irvine of Drum granted bonds of provision to his two younger daughters, 8000 merks to each, payable at their age of 16 years; “and in case of the decease of either before marriage, or before the age of 16 years, then 2000 merks of the portion of the deceased sister to fall to the survivor, and the remainder to the said Alexander Irvine and his heirs.” After their father's decease, both of them being past sixteen, they insisted against their brother for their several provisions, for whom it was alleged, That they could not have access to the said provisions, without giving security to re-employ in favour of the defender 6000 merks of the sums provided to them in the event of the decease of either before marriage.——The Lords found, That the pursuers ought either to re-employ their portions in terms of their bonds of provisions, at the sight of the Ordinary on the bills for the time; or at their option, before extract, to give bond to repay to the defender, and his heirs of tailzie, such part of their portions as by their bonds of provisions are provided to return in the case of their decease unmarried, provided only they have so much free estate over and above the payment of their debts. See Appendix.

Fol. Dic. v. 1. p. 309.