A wife being substituted by a husband to a provision left to a child, in case of the child's death, upon condition si vidua manserit et non nupserit, the Lords found the condition lawful.
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In a declarator pursued at the instance of Dame Margaret Fowlis, relict of Sir Andrew Gilmour, againt Alexander Gilmour, eldest son to Sir John Gilmour late Lord President of the Session, and Annes Gilmour, his sister, upon this ground, That Sir Andrew having disponed, in favours of Margaret Gilmour his only daughter, his whole estate, which he then had, or should acquire, with this provision, that in case his daughter or her children should decease before her mother, the said estate should belong to her mother, she remaining unmarried; as likewise by a testament of that same date, he appoints his daughter his universal legatar, and failing of her by decease, her mother to succeed upon the same terms; whereupon it was craved to be declared, that the said Dame Margaret only had right to the bonds or sums of money that belonged to Sir Andrew, his daughter being now dead, and he having no other children. It was alleged by the defenders, That the disposition and testament being qualified, as said is, she could thereby have no right, but, in case she should die unmarried again; and if she should uplift the sums of money belonging to her husband, she ought to be decerned to re-employ the same with that same quality and condition; so that if hereafter she should marry, they ought to belong to the nearest of kin of her husband. It was replied, That such conditions being reprobate by the law, whereby matrimonia debent esse libera; and it being the meaning of the defunct, that the said restraint of not marrying should only be in force during the lifetime of his daughter or children; she being now dead, and there being no children of the marriage, that condition and the restraint is void, specially seeing the mother's substitution to the children is burdened with the provision of 500 merks to be paid to Sir Andrew's natural daughter; which certainly he had never done, if he had not intended that his Lady should have right failing of his children, seeing that provision was payable at her marriage whensoever it should happen.
The Lords albeit they found, that the condition si vidua manserit et non nupserit be consonant to law and not reprobate, yet they decerned that the relict should have right to the whole estate, by virtue of that substitution, notwithstanding of the qualification; and, that it was the meaning of the defunct that it be so, not only because that it was burdened with a paction to his natural daughter, but likewise because, by a former bond when he had no lawful children, he had provided his Lady to his whole estate.
Fol. Dic. v. 1. p. 191. Gosford, MS. No 485. p. 254.
