Agnes Forrest and Her Husband, v. Archibald Forrest
Date: 1 December 1741 Case No. No 5.
A father granted a provision to his daughter, payable at her marriage or majority. She was major three years before the date of the deed. In an action against her father's heir, it was found that interest was due, not from the date of her majority, but from the first term after her father's death.
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The deceased Archibald Forrest disponed his estate, being about 500 or 600 merks yearly, to Archibald, his eldest son, burdening him with 500 to Agnes Forrest, his eldest daughter, payable at her marriage or majority, whichever should first happen, who, after her father's death, brought a process against her brother for payment thereof, and she insisted for the annualrent from her majority. The defence was, that annualrent did not become payable till the death of Archibald the father, and so the sum could not begin to bear annualrent till decreet was obtained therefor, and horning used against the defender, in respect that the disposition was only dated in the 1735, whereas the pursuer was major in the 1732: And as the provision is only to the pursuer at her majority, whenever the same should happen, the condition under which the provision was payable, at the time of the deed, was absolutely impossible, since thereafter she could not become major. Besides, it is a rule in law, that wherever an impossible condition is annexed to a deed of a testamentary nature, the condition does not annul the legacy, but the same is pure, and the condition is considered as if it had not been adjected, according to § 1. Instit. De inutil. stipul. which must hold more particularly in this case, as it would seem to have been the father's intention that the provision should not be payable till after his own death, he obliging his son, in an after clause of the deed, to aliment and maintain the pursuer at bed, board, and clothes, till such time as her portion should become payable.
Answered for the pursuer, That these words, which shall first happen, cannot be at all understood to imply that the payment of her provision was suspended by a future condition. The only use of these Words was, to point out, that either of the two periods, majority or marriage, which first happened, was the term from which her provision should bear annualrent, but not that he considered either of these events as a term or period yet to come; and if these words which shall first happen, had been left out, there could be no doubt the pursuer's demand would be beyond dispute. See November 25. 1686, Kelso, No 4. p. 6330. But granting it were to resolve in a quæstio voluntatis, which should always determine cases of this nature, it is evident that the father intended the provision should bear annualrent from one of these two periods, whichever should first happen. The pursuer was married before the date of the deed; and, as the husband took the burden of maintaining the pursuer off her father, was it not reasonable he should have interest in return upon the provision? 2dly, The pursuer's younger sister's provision was payable to her by the same clause at marriage or majority, which should first happen; so that the testator's presumed will is evident, and ought not to be got the better of, by a catch at a word inaccurately thrown in by the writer of the deed, especially as the testator was a countryman of little education, unacquainted with the stile of writs.
The Lords found, That annualrent became only due at the first term after the father's decease.