Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr William Irving v. John Irving of Drumcoltran, his Father
Date: 7 February 1694
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The Lords found it no sufficient probation of majority, that, at the time of his subscribing the discharge to his father, he was laureat, and passed the college, and had been at a writer's chamber; and, therefore, allowed him to prove his minority, he always instructing that he had revoked, or intented a reduction of it, intra annos utiles: and found it was not so in rem Versum as to hinder his reduction, that the sum in the discharge was for his apprentice-fee; because it is a debitum naturale on a parent to educate their children; and lawyers think the impensœ bestowed that way nec veniunt in computationem legitimœ nec in collationem bonorum. As to the 500 merks which the father left to the determination of friends, the Lords ordained them to be charged with horning, to meet and give their opinion.
And, quoad the last article of his share of his sister's portion of 2000 merks, it was argued, that the term of payment being her marriage, and she dying unmarried, it was a conditional bond, which never took effect, but evanished; so that the marriage was not merely the term of payment, but the term of existence of the obligation.
Answered,—There was a substitution in the bond of provision; for, though it was not payable to her till after her marriage, yet it bore, that, failing of her, it should fall to her brother, where the clause of her marriage is not repeated; and, in pupillar substitutions, the substitute took place though the institute did not.
The Lords thought the clause dubious; but, in regard the father was alive, they allowed him to depone what was his meaning; whether his sons should succeed to this portion of their sister's, in case of her being married, or quandocunque; for though she had disponed it by her contract, yet, if the marriage had dissolved within the year, it would have devolved to the substitutes.—See Durie, 17th January 1665, Edgar; and 22d February l677, Belshes.
