Lord Royston and Laird of Fraserdale v. Haliburton of Pitcur
Date: 16 February 1715 Case No. No 16.
A bond being only to subsist failing children betwixt the granter and his wife, was found to be void by existence of children of the marriage who survived the granter, tho' they died before his wife without issue.
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The Lord Royston and Fraserdale having wakened a process against Pitcur, wherein, as having right by progress from Sir George Mackenzie, they insist for payment of the annualrents of a bond due by the late Pitcur to Sir George, (the principal sum being payable to his heir of tailzie) Pitcur intents another process against them, as being executors by progress to the said Sir George, for payment of a bond of 6000 merks granted by him to Margaret Haliburton, this Pitcur's sister, and failing her to Pitcur himself, payable at the next term after their attaining ten years of age; but the bond being lacerate in several places, so that some of the clauses and provisions could not be read, though the clause of registration, subscribtions, &c. were entire; and the Lords having found, in another process, that the bond was not probative, in this new process the same grounds are again insisted on by the lawyers on either side, which nevertheless shall be here past over, because the interlocutor hereto subjoined takes no notice of them. But now, further, Pitcur having produced a declaration under the hand of my Lady Prestonhall, (who was first married to Sir George), importing, that she had procured from Sir George a bond of 10,000 merks in favour of her friends, and that the said bond was to subsist, failing of children of her body, with Sir George; but he having deceased, leaving children, who also deceased before their mother, and without issue,
It was contended for the executors; That granting such a declaration was sufficient to make up the lacerate clauses in the bond, yet that the import of it was, that if he had no children by her, then this bond was a kind of fideicommiss, whereby his other heirs were to be burdened; but if he had children, then the condition of the fideicommiss failing, it was to take no further place. And so it is expressly in l. 114. § 13. ff. De legat. 1. cum quis erat rogatus (si sine liberis decesserit) per fidei commissum restituere, conditio defecisse videbitur, si patri supervixerint liberi. And 1. 17. § 7. ff. ad Sen. Trebell. which says, that when a fideicommiss is left under that condition, that it is extinguished if the person therewith burdened leave a son, though that son should afterwards die; so that Sir George his son having survived him, defecit conditio, and the fideicommiss being once extinguished, by no rule in law could it revive.
Answered for Pitcur; That the words of the declaration are to be taken together, viz. X ‘I procured from Sir George a bond in favour of my friends’ which, joined with the subsequent words, ‘that the said bond was to subsist,’ &c. make up the two cases, viz. either that the marriage dissolved without children, or that the children died without issue; for so clauses of this nature have been in our law frequently interpreted; particularly No 9. p. 2948., where the words of the interlocutor are, ‘The Lords found, that the survivancy, and not the existence, of children procreate of the marriage was understood; and therefore found the sum in question to return, seeing the children procreate died without issue before their mother,’ And it was alleged Pitcur was in a much stronger case; seeing, by the declaration, it appeared, that Sir George his intent was to prefer the issue of his own body, by his wife, to her relations; but, upon that failure, to prefer his wife's friends for the sums in the bond to his other heirs. 2do, That there is a difference between the condition (si sine liberis), and that of (failing children); this last being of the nature of a substitution which takes place at any time whenever the institutes fail.
Replied for the executors; That though (which failing) do indeed import so much in substitutions, and cannot there be otherwise explained, yet when such words are insert as the condition of a bond, there they must still be understood, so as if the granter should have children surviving him the bond took no place. Nor can it be otherwise understood in the present case without manifest absurdities; for so, if Sir George's descendents had failed after 500 years, this bond, with its whole annualrents, would have been a burden upon his heirs.
The Lords found, that supposing the clause in the lady's declaration, (viz. that the bond was to subsist failing children of her body with Sir George) had been insert in the bond, yet the bond could not be binding in the event which hath happened, by the existing of children in the marriage, who survived Sir George, but died before the Lady without issue.
For Pitcur, Lord Advocate.Alt. Ro. Dundas.Clerk, Mackenzie.
Fol. Dic. v. 1. p. 189. Bruce, No 68. p. 82.
