A person disponed his estate to two relations, with this clause, ‘who by these presents are destinated and appointed to marry each other.’ The male disponee pursued for aliment, &c. the person who had an intermediate right to possess the estate. Found entitled to aliment and education, whatever might be done in future if he refused to marry upon requisition.
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John Mackrath of Mackilston having no children but a bastard daughter, he marries her to Thomas Alexander, his nearest kinsman; and there being a daughter procreate of that marriage, he, designing to settle his estate on that grandchild, dispones his lands to one John Mackrath and Mary Alexander, his said grandchild, and the heirs-male to be procreate of their body; and then adjects this clause, “who, by these presents, are destined and appointed to marry together.” Mackrath dying in 1703, Thomas Alexander, his son-in-law, and heir of line, enters into possession of the lands; and John Mackrath, the boy to whom it was disponed, raises a pursuit against the said Thomas, for half of the mails and duties of the lands for his aliment in the mean time, and educating and maintaining him at schools. Alleged, Your disposition is conditional, being to him and Mary Alexander, and the heirs-male of their body, which necessarily implies their marriage, though there had not been an express clause appointing them to marry, (as there is); and therefore you have neither title nor interest to call for the rents till you perform the condition by marrying, being both arrived at the age allowed by law, you being 15 and she about 16. Answered, This is no proper condition, neither suspensive nor resolutive; not suspensive, for when the old man died they were about six or seven years old; and it cannot be supposed to be his meaning that I was to have no right to the mails and duties till I actually married, seeing that could not be done for the course of sundry years after, bringing us both to a maturity of age for a married state; and, therefore, medio tempore, I was to be alimented out of the lands. Neither is it a resolutive irritant condition, for there is no period set for performing the marriage, nor any clause adjected, declaring the disposition void and null, in case of not performance; and the truth is, that though she be of a full growth, yet the boy is of a weak tender sickly constitution, scarce the bigness of one of twelve years, and very unfit as yet for marriage; and, though he does not decline it, yet he is persuaded the old man, if alive, would not be so unreasonable as to urge his marrying presently, till he came to a more solid habit of body; and to wait that time can never forfeit my right. And what are you that detain the rents from me? You, though heir of line, can never come in the contrary of his tailzie to me, and your daughter; which will exclude to the end of the world; and you have no pretence to keep up my rents, nor debar me till I be married. Replied; The ordo charitatis in this disposition was the love and affection he bore to his grandchild, and it is by her you are called to the fee; so, till that be performed, you have no claim, you being no relation at all but the name; or, if any, very remote; and had no expectation but in view of her who was the persona magis dilecta by the defunct; and, therefore, the condition of a marriage hanging on a may, and may not be, dies obligationis nec venit nec cessit. And this is decided in l. 51. D. de condit. et demonstrat. The Lords thought, that albeit matrimonia debent esse libera, and where coacta difficiles solent habere exitus, yet if a right be burdened with that quality and condition, you must either fulfil the terms, or want the donation. So there is no absolute restraint, but only an alternative; and though this condition be like the sponsalia preceding marriage, yet there being no requisition as yet used by way of instrument offering the lass to him, nor any direct positive refusal as yet on his part, he cannot be debarred from the rent to educate and maintain him, whatever may be done if he shift after requisition.
Fol. Dic. v. 1. p. 190. Fountainhall, v. 2. p. 697.*** Forbes reports the same case:
The deceased John Mackrath of Mackilston having no children but a natural daughter, married to Thomas Alexander, who had by her a daughter called Mary Alexander, did, for love and favour, to John Mackrath and Mary Alexander, then infants, under the conditions after mentioned, dispone his lands to them, who were appointed to marry together, and the heirs-male to be procreated of their bodies; which failing, or being and deceasing, to James Mackrath in Glen his nearest heir-male; which failing, to Mary Alexander, she surviving her own nearest heirs male or female, their heirs and assignees; and for the causes, and under the conditions foresaid, constituted the foresaid persons in manner, and conform to the destination above-written, his assignees to the mails and duties of the land after his decease. John Mackrath, when he was past fourteen years of age, pursued Thomas Alexander, who, as heir of line served to the disponer, had intromitted with the rents of the lands disponed, to pay to him the half thereof since the disponer's death.
Alleged for the defender; The pursuer hath no interest to call for the rents, the disposition being granted upon a suspensive condition, that he and Mary Alexander marry together; which can take no effect till the condition be fulfilled by their marriage.
Replied for the pursuer; No period of time being assigned for his marrying Mary Alexander, it must be understood in a rational and prudent sense, viz. when he should come to that maturity of age and habit of body which fits him for marriage; and he is most willing to marry her when in a capacity to do it. Now, it is not to be thought, that the disponer intended the mails and duties to remain with his heir until the pursuer were capable to marry; but that Mary Alexander and he should enjoy them media tempore for their aliment and education.
The Lords found, that the pursuer had right to the half of the mails and duties of the lands disponed, since the death of the disponer; reserving, to their Lordships consideration, the import of the disposition, in case the pursuer should refuse or decline, when he comes to age, to accept of Mary Alexander for his wife.
