Scottish Court of Session Decisions

Subject_1 PROVISION to HEIRS and CHILDREN.
Subject_2 SECT. XX.

Conditional, and Implied, Provisions to Children.

Anna Carstairs and John Ramsay, her Husband,
v.
John Cerstairs her Father, and Sir John, his Tutor dative

Date: 21 June 1672
Case No. No 157.

Provisions in favour of daughters, failing heirs-male of the marriage, are not due till the marriage be dissolved by death of the husband or wife, although payable at a certain age.

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John Carstairs, the father, being obliged by contract of marriage, in anno 1649, in case there should be but one daughter procreated of the marriage betwixt him and Isobel Ainsly, to pay to her the sum of L. 20000 after her attaining the age of 16 years, the said Anna did intent action against her father and his Tutor-dative, for payment of the said sum, she being now past the age of 20 years, and married. It was alleged for the defenders, That the contract of marriage could furnish no such action, because the provision in favours of one daughter, was only in case of failure of heirs-male of the marriage, which condition did not yet exist, seeing both the father and mother were alive, and might have heirs-male. It was replied. That the father being furious, and a Tutor-dative given to him, and the mother not having cohabited with him these many years, and being past 50 years of age, by reason whereof it was impossible there should be any heirs-male, of the marriage, the condition of failing of heirs was purified, and the condition ought to be satisfied.

The Lords did sustain the defences, notwithstanding of the reply, and found that such conditional provisions in contracts of marriage in favours of daughters, failing of heirs-male, could only be interpreted where the marriage is dissolved by the death of one of the parties contractors, at least; and some were of opinion, that the condition could not be fulfilled but by the death of the husband, to whom only an heir of the marriage could be served. But as to this case, they did all agree, where both parties were alive, that it could never be the meaning of the parties that the father should be distressed, because of age or sickness, as equivalent to the dissolution of the marriage by death, which is not the meaning of the clauses.

Gosford, MS. No 493. p. 258. *** See Stair's and Dirleton's report of this case, No 43. p. 2992, voce Condition.