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The debtor being obliged to pay a sum to his creditor, at the term contained in the bond, and, in case of failzie, to his son, named in the bond; and the father, who was principal creditor, living divers years after the term of payment, and receiving the annual-rent of the sum, and thereafter dying, never making any alteration by testament, or any otherwise, concerning that sum, to give or provide the right thereof otherwise to any other; after whose death the son substituted charges the debtor to pay the sum; who suspending that seeing the principal creditor lived divers years after the term of payment, therefore the clause of substitution, whereby payment was obliged to be made to the son, in case of the father's decease, had not taken effect, and consequently the sum pertained to the defunct's heirs or executors, and ought to be confirmed in testament, and the son could not charge therefor; this reason was not sustained, specially seeing the same was proponed by the debtor, and there was neither any heir or executor of the defunct's, or any of the defunct's creditors, who compeared to claim that sum, and propone the same; so that it was not competent to the debtor to excuse him from payment; and seeing the defunct, albeit he lived after the term, never changed his will, therefore the substituted person was found to have right, as said is.
Clerk, Hay.
Fol. Dic. v. 2. p. 395. Durie. p. 721.
