Scottish Court of Session Decisions

Subject_1 CONDITION.

Jamieson
v.
Telfer

1744, Nov. 20.
Case No. No. 3.

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Thomas Telfer, younger of Townhead, granted to his younger brother William a bond of provision of 2500 merks, payable after the death of the longest liver of both father and mother, bearing to be granted at the father's desire in satisfaction to William of all bairns part of gear, portion, executry, or any thing else he could claim through the death of father or mother, of all which of the same date William gave him a discharge,—as the bond also bore. William a travelling chapman died in England, and named Jamieson his executor for behoof of his brother. Jamieson who administered was himself a creditor and paid his other debts and funeral charges, and thereby a balance was due to him of L.68, for which he sued Thomas the debtor in the bond. It appeared that William died before either father or mother, and the mother died before the father, and both are now dead. Therefore the defence was, That the bond being for a provision and payable after the father's death, implied a condition of William surviving his father, like a bond payable to a child at a certain age, and quoted a decision in 1730, Bell against Davidson, where a bond by a father to his son for his aliment payable after his own death was found null, the son having died before the father. This point I reported, and Arniston and President both agreed that we could not determine any general rule, that a father granting such a bond of provision to an infant child, and that child dying in infancy and before him, that might void the bond;—but in the present case all agreed that the bond implied no condition of William surviving his father or mother.