Scottish Court of Session Decisions

Subject_1 SERVICE AND CONFIRMATION.

Grim
v.
John and David Scott

1749, June 28.
Case No. No. 12.

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In 1711 Scott of Hedderwick granted bond for love and service for L.1000 to Jean Ogilvie wife of David Grim and the children of that marriage, whom failing the children of any other marriage, excluding all her other executors or assignees, payable at Martinmas 1712, but secluding all diligence for payment or security of it during the granter's life, but prejudice to him to pay the whole or any part he should think proper;—and in case of the wife's death without children then existing, declaring the bond as to what should not then be paid, to be void and null, and excluding the husband's administration, because it was alimentary for the wife and childrens support and subsistence. The wife died in 1713, leaving one daughter, who died in 1716, without makingany title to the bond. Hedderwick died only in 1735, and no demand made on the bond till 1748, when David Grim was served heir and decerned executor to his daughter, and sued Hedderwick's heirs for payment. The defence was that the bond was gratuitous and alimentary, not exigible during the granter's life, and all executors and assignees other than the children of Jean Ogilvie excluded, and therefore Jean Ogilvie and her child having both failed long before Hedderwick the bond became extinct. 2dly, That the daughter had made no title to the bond, and therefore the pursuer had no right as heir or executor to her. Answered: The bond could only become void in one event, Jean Ogilvie's dying without children. To the second, That the children of that mariage were not substitute to their mother but re et verbis conjuncti with her, et concursu tantum partes fecerunt. The Lords on my report first found that the bond subsisted notwithstanding the predecease of both mother and daughter before Hedderwick. This found by the narrowest majority six to six, the President being one of the six against the interlocutor and so not counted. Next they found that the daughter had right to the bond without any title. This was found by a pretty great majority, though Kilkerran who was for the first interlocutor was against this, at least would not vote. So that if a vote had been put on the whole case the defenders must have carried it. But I own I was against both. I cannot understand the re conjuncti. While the children lived with the mother they would no doubt be alimented as she was, but suppose them married or out of the family in her time, they could take none of the money from her during her life.