Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Margaret Hay, and William Caruthers, Merchant in Edinburgh, her Husband,
v.
Doctor John Hay, her Father

Date: 27 July 1710

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Doctor John Hay having, in his contract of marriage with his first wife, in case there should be but one daughter of the marriage, and he should have a son of any subsequent marriage, to debar her from succeeding to 20,000 merks, provided to the Doctor by the deceased Sir John Nisbet of Dirletoun; obliged himself to pay to that daughter 4000 merks, at her marriage or majority, and other 4000 merks after his decease, with annualrent from the respective terms: Margaret Hay, only child of that marriage, with the concurrence of her husband, pursued her father (who was married a second time, but had no son,) for payment of the first 4000 merks. Who alleged that the same being only payable sub conditione, in case he shall have a son to exclude his daughter from Dirletoun's money; payment cannot be sought till the condition exist, by his having a son: as is observed by Dirleton, Decision 172, Ramsay contra Carstairs.

Replied for the Pursuers,—Had it been the meaning of parties, that the daughter should claim nothing from her father, till it appeared whether he would have a son surviving him, the whole 8000 merks should have been payable only at his death: whereas the making her marriage or majority the term of payment of 4000 merks, and suspending the payment of the other 4000 merks till the defender's death, clearly entitle the daughter to exact 4000 merks presently, seeing she is both major and married. The decision betwixt Ramsay and Carstairs doth not meet the present case; because, there, the whole 20,000 pounds was payable to heirs-female at one term, viz. Their age of fifteen, in case they were excluded by heirs-male of the same marriage; and both the parents were alive at the time of the pursuit at the instance of a daughter; so that there was then a possibility, not only of heirs-male, who would have excluded her, but also of more daughters, who would have diminished her claim.

Duplied for the Defender,—Although the term of payment of the first moiety be come, it remains suspended till the condition exist, which is adjected to the obligement itself; and the daughter's marriage, or majority, was only made the term of payment, that annualrent might be due from that time, if the condition shall thereafter be purified. At least, the defender cannot be obliged to pay the first 4000 merks presently, unless the pursuers find caution to restore the same in case they succeed to Dirletoun's money.

The Lords found the 4000 merks due to Margaret Hay, with annualrent thereof since her marriage; and decerned the defender to make payment thereof at the term of Martinmas next, upon the pursuer's finding caution to restore it in case she succeed to Dirletoun's money.

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