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Paton v Nairne. [1728] Mor 4324 (22 November 1728)
URL: http://www.bailii.org/scot/cases/ScotCS/1728/Mor1104324-015.html Cite as:
[1728] Mor 4324
Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. III.
Simple Destination.
Paton v. Nairne
Date: 22 November 1728 Case No. No 15.
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John Nairne of Seggiden, in the year 1671, resigned his lands to himself in liferent, and after his decease, to Elizabeth Nairne his eldest daughter, and the heirs of her body; which failing, to Anna Nairne his second daughter, and the heirs of her body; which failing, to Barbara Nairne his third daughter, and the heirs of her body; which failing, to return to himself, and the heirs-male of his body, &c. He reserved a power to alter and to dispose of the lands, &c. Thereafter in his eldest daughter's contract of marriage, the former settlement was repeated, and the foresaid faculty renounced. Herein was also a clause, that the eldest heir female should succeed without division, and her husband should bear the name and arms of the family. The husband of Elizabeth, the eldest daughter, became also bound to restrict his courtesy to the one half in favour of the said heirs of tailzie. The question occurring here, whether this was not so far a limited tailzie, that Elizabeth and her husband could not gratuitously alter the order of succession, and dispone the estate to the third, in prejudice of the second sister? it was found, that Elizabeth was fiar; that she might alter the destination in her contract of marriage; and seeing she had disponed the estate to Barbara, her third sister, that therefore Barbara had right to the same. See Appendix.
