Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, Reported By REPORTED BY WILLIAM FORBES, ADVOCATE.

Grissel Ewart
v.
Andrew Ewart, Minister at Kells, her father

Date: 8 February 1706

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Mr. Andrew Ewart having granted bond in the 1695, narrating that the sum of 6000 merks, provided in his contract of marriage with Mary Canon, the pursuer's mother, for the daughters of the marriage, failing male children, was not sufficient, and therefore obliging himself and his heirs, secluding executors, to make payment of the sum of 10000 merks to the daughter or daughters of that marriage in case there should be no male children to enjoy his estate; and the marriage having dissolved by the death of the said Mary Canon without any male children; Grissel Ewart, the only daughter, pursued her father for payment of the 10000 merks with annual-rent thereof since her mother's death.

Alleged for the defender,—That his obligement contains no definite term of payment, nor any clause for annual-rent; but was only to take effect in case he, wanting heirs-male of the marriage, should give away his estate to other heirsmale, and so disappoint the lineal female succession; which hath not yet existed, nor can be known till his decease.

Replied for the pursuer,—The true meaning of the bond was failing sons of the marriage, to pay 10000 merks to the daughters, one or more, which case existed so soon as the marriage dissolved, the dissolution whereof must be the term of payment. For had the payment of the sum been industriously delayed till after the father's death, some clause had been inserted importing so much, either expressly, or tacitly, by obliging only the father's heirs and not himself to pay, or by reserving his liferent. 2. The daughter had been very ill secured by the bond, if during the father's lifetime she could neither uplift the money, nor crave annual-rent nor any portion if married. Especially considering, that by the conception of the bond heirs only and not executors are bound, and the father might make all his estate moveable.

The Lords found the sum payable presently.

Page 94.