Katharine Edmonstoun, and Mr Stephen Olipher, her Husband v. James Edmonstoun
1708.
Julyl9. Case No. No 12.
A bond of provision, granted to a child by her father on death-bed, who, by his contract of marriage with her mother, was bound to provide the children of the marriage to the fee of a certain sum, was sustained, as being, in effect, but a division of the sum and implement of the contract.
Click here to view a pdf copy of this documet : PDF Copy
James Edmonstoun having granted a bond of provision to his younger children and the portions of the deceasing to accresce to the survivors; Katharine Edmonstoun, one of these children, with the concourse of Mr Stephen Olipher her husband, pursued James Edmonstoun, her eldest brother, as heir to his father, for payment of her own provision of 5000 merks, and a proportion of her younger brother's, falling to her through his decease.
Alleged for the defender; Absolvitor; because the bond of provision was granted on death-bed, and he had raised reduction ex co capite, which he repeated by way of defence.
Replied for the pursuer; That the father was bound, by his contract of marriage, to employ 20,000 merks in favours of himself and his future spouse, in conjunct-fee and liferent; and of the heirs and bairns, one or more, to be procreated betwixt them in fee: And the bond of provision was nothing in effect but a division, which the father has always the power of even in articulo mortis.
Duplied for the defender; Utcunque the death-bed deed, had it related to the obligement in the contract as its antecedent onerous cause, might have subsisted; yet, not having any relation thereto, but being in the terms of a separate provision, and made on death-bed, it cannot stand in prejudice of the heir. Nor is it enough for the pursuer to restrict the impost of it to what might fall to her share of the 20,000 merks by her mother's contract of marriage; because, the death-bed deed being null in law, can have no effect at all, by the rule quod nullum est, &c. Besides, there was no faculty of division of the 20,000 merks reserved to the defunct, nor did he exerce any such faculty; on the contrary, hoc non voluit, but only that the death-bed bond of provision should be binding, quod facere non potuit.
The Lords sustained the bond, and repelled the defence of death-bed; in respect of the anterior onerous cause by the contract off marriage.
