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A man being obliged to provide 400 merks to himself, and to the bairns to be procreated of the marriage, which failing, the one half to his heirs, and the other half to hers, to be divided at the time of the first of their deaths; the wife's heir pursued for her half.
Alleged for the defender: That the condition did not exist, in so far as there was a child procreated that survived the dissolution of the marriage two years, and was executor confirmed to his mother; 2do, The time of dividing being at the dissolution of the marriage, the existence of the condition must be then considered.
Answered: The substitution of the wife's heir by the successory clause, “which failing,” &c. imports quandocunque deficiunt, otherwise tailzies would be frequently evacuated.
The Lords, in respect of the specialty of the time of dividing, found the substitution did expire by the child's outliving the dissolution of the marriage.
Fol. Dic. v. 2. p. 396. Harcarse, (Contracts of Marriage) No. 390. p. 102.
