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The Children of Johnston and his Creditors, Competing. [1749] Mor 13036 (24 February 1749)
URL: http://www.bailii.org/scot/cases/ScotCS/1749/Mor3013036-146.html Cite as:
[1749] Mor 13036
Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XVII.
What Deeds are held onerous.
The Children of Johnston and his Creditors, Competing
Date: 24 February 1749 Case No. No 146.
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The deceased Johnston of Kirkland granted bonds of provision to Alexander and Margaret Johnstons, his younger children, payable at the first Whitsunday or Martinmas after their marriage, or their age of 21 years, reserving a power to alter; whereon they having claimed to be ranked with his other creditors, the Lord Ordinary, “in respect of the reserved power to alter, found they could not be ranked with the onerous creditors.”
Against this interlocutor the said Alexander and Margaret having reclaimed, the Lords proceeded on a different ratio decidendi, in these words:
“Having considered the petition, and it appearing to the Lords, that the condescendence of effects belonging to the father at his death is not sufficient to instruct that he had sufficient effects to pay his debts and children's provisions, they refused the petition, and adhere.”
Kilkerran, (Provision to Heirs and Children.) No 12. p. 465.
