Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Trotter
v.
Craw

Date: 7 July 1675

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By contract of marriage betwixt — Craw, and Trotter, his wife; there being a special provision, that, in case there should be no children of the marriage, the half of five thousand merks, to which she was provided in liferent, should return to her and her heirs; her husband being dead, she did thereupon pursue his heir, for payment of the half of the foresaid sum.

It was alleged, That the pursuit could not be sustained upon that provision, because it could only be interpreted to take effect in case she had died before her husband, without heirs of the marriage.

It was replied, That the provision not being in these terms, but simply failing heirs of the marriage, the same being now dissolved, the pursuer ought to have the benefit thereof, being now an impossibility that there can be any heirs.

The Lords did sustain the pursuit, and repelled the defence, in respect of the conception of the return of the provision, which was simply failing of heirs: but, in respect that she was liferenter of the whole five thousand merks, whereof the half was only her tocher, they did decern the heir to be only liable in payment after her decease, to any should represent her, or to her assignees.

Page 480.