Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Ninian Hamiltone
v.
John Syme

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Isabell Hamiltone, sister to Ninian Hamiltone, was married to John Syme, at the mill of Aberdour, in September 1634, and deceased in November 1635, leaving a son called Robert, who was confirmed executor to his mother, but not served heir, and, after his mother's decease, lives two years. Before the contract of marriage, John Syme received four thousand merks of tocher, for the which she was infeft in the said mill of Aberdour, and is obliged, if J. S. her spouse decease before her, to pay to the heirs to be procreated of the said marriage, two chalders victual yearly, for their education; and J. S. is obliged, if there be no heirs of the said marriage, to pay to the said Isabel, her heirs, executors, or assignees, the sum of 2000 merks, in contentation of all the moveable goods and gear which may fall to them through her decease. Ninian, brother to the said umquhile Isabell, is confirmed executor ad omissa to his sister, and therein has confirmed the said 2000 merks, and obtained decreet thereupon, before the commissaries of Dunkell: which the said John Syme has suspended, and seeks to be reduced for the self-same reasons,—1mo. The bond is conditional, in case there be no heirs; which condition fell not out the time that the bairn confirmed the mother's testament, and so there could be no dative taken ad omissa, because the debt was not in rerum natura; neither could be, so long as the bairn lived. To the which it was answered, That the pursuer could have no other way to pursue for his debt, but by taking the said dative ad omissa; and, in this case, the word omissa is not taken privative, but negative, quasi non corifirmata. Which the Lords sustained, to give the brother action to pursue the debt quando extitit conditio.

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