Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Thomas Ogilvie of Trotock v. Thomas Brown
Date: 1 July 1663
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Thomas Brown, by contract, is bound to give in tocher with his sister, L.1000 to Thomas Ogilvie of Trotock, and he is bound to add another L. 1000; which haill sum is provided to the man and woman in liferent, and the heirs of the marriage; which failyieing, the one-half to return to the wife's heirs, and the other to the man's. The wife dying, leaves a bairn, which was never served heir, and thereafter dies. The husband convenes Thomas to pay the sum convened in tocher. Alleged, The existence of a bairn, though not served heir, purged the condition of the tailyie; and that potentia succedendi was respected in law, and not actus; and that in personalibus there could be no tailyie. Yet the Lords found the sum tailyied, which was not nullified by the existence of a bairn, he not being served; and that it returned to the wife's heirs; whereas, if the contract had been, in case there were no heirs, it had altered the case. Yet the decision was very hard.
Act. Dunmuire and Lockhart.Alt. Wallace.
MS. folio 52.
