Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Murrays v. David Scot of Scotstarbet
Date: 28 July 1696
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Halcraig reported the pursuit, at the instance of the brethren and sisters of Sir James Murray of Philiphaugh, as executors to Jean Murray, their sister, against David Scot of Scotstarbet; being a declarator, that the transaction made by the Lady Philiphaugh, their step-mother, as to the 17,000 merks of portion due to her daughter, their sister, could not prejudge them who were nearest of kin; and, she being an infant, her mother could not, by substituting herself in case of her decease, prejudge their natural succession; and the sum transacted for coming in place of the portion, capit naturam ejus in cujus locum surrogatur, and consequently belongs to thir pursuers; and the defender Scotstarbet, who got a voluntary right of it from Lady Philiphaugh, his aunt, must be debtor to them and refund it.
Alleged,—The debt by the transaction became innovated, and there is no surrogation in the case; likeas this portion was not the sole ground, but the Lady renounced also her jointure of 1800 merks per annum; and if they quarrel it quoad one, they must repone Scotstarbet, as the Lady's assignee, quoad all; in which case he would get much more than by standing to the transaction. 2do. As it was a profitable bargain to Philiphaugh, so thir pursuers, as executors to their sister, can have no more right than she could have claimed herself: But ita est, she eventually had none; for her provision was conditional, in case she attained to the age of 16; but ita est, she died at 11; and it is plain, that, both by the common law and ours, dies incertus pro conditione habetur; and in children's portions a sum due at a certain age, if they die before that, their representatives can claim nothing. L. 49. sec. 2.; Legat. 1. L. 22.; D. Quando dies legat. ced. See Stair, tit. Of Obligations; as also, 17th January 1665, Edgar; and 17th January 1677, Belches.
Answered,—They were not here approving the contract pro parte, and reprobating it pro reliqua; but only craving, that the substitution of the mother to the daughter might be interpreted in terminis juris for a surrogation; seeing the tutors of minors, in taking security for their money, cannot change, alter, nor invert the natural channel of succession from the nearest heirs who would otherwise have succeeded; and there be several instances where the institution subsists, and yet one is permitted to impugn the substitution. Neither can her jointure enter into consideration, because, Philiphaugh's family being then low, the heir would have got an aliment from the liferenter. And though the paymentof the daughter's portion was suspended till sixteen, yet the obligation began at her father's death; turn cessit dies obligationis: so the mentioning her age of sixteen was only the terminus solutionis; and, by the Roman law, such legacies are not -conditional, but presently due,—L. 25. C. Quando Dies Legat. et l. 46. D. ad S. C. Trebel.
The Lords did not decide this subtile case, but recommended to some of their number to endeavour to settle the parties. But several of the Lords inclined to think, that albeit the minor's friends could, by a tailyie and substitution, divert the natural succession, and give it to a remoter, in prejudice of the nearest of kin; yet that, if they quarrelled any part of the transaction, the other party ought to be free to pass from the whole, and crave to be in their own place, as if the said bargain had never been made.
