Scottish Court of Session Decisions

Subject_1 CONDITION.

Janet Maxwell, and Storie, Her Husband,
v.
James Maxwell of Merksworth

1752. Jan. 25, Feb. 7.
Case No. No. 6.

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A contract of marriage provided the man and wife's whole stock, 15,000 merks, to the heirs-male, whom failing, the heirs-female to be procreated of the marriage, containing an obligement, in case there be no heirs-male procreated of the marriage attaining majority or marriage, to pay to the daughters, if one, 5000 merks, if two, 8000 merks, if three or more, 10,000 merks, payable at their marriage, in full of legitim, executory, or what they could claim through the father's death. In 1727 a daughter of the marriage, Janet No. 6’. Maxwell, was married, and got 3000 merks of tocher when a son of the marriage was living, provided that it should not hurt her claims by the said contract if more were due. The son lived till he was 27 years of age, and died in 1741, when the father had several children, sons and daughters of a second marriage, and a small stock to divide among them. The daughter sued her father for the other 2000 merks, to make up the 5000 merks with interest from her marriage; and the Lords found her entitled to the 2000 merks, because the son died before his father, and therefore could not be heir though he survived majority; but without any interest, and in full of all her claims. I own I differed, and thought the meaning of parties was, that if a son was either married or attained majority, the condition of the obligement failed, though he should die before his father, and could not actually be heir; otherwise though the son had married and been provided, and though he had children, at least daughters, yet if he had died before his father, the condition of this obligement would have been purified, and the daughters portions due.

See M'Kenzie against Sutherland, 18th July 1750, voce Provision to Heirs and Children.

See Laurie against Lewis, 13th February 1736, voce Legacy.

See Johnston against Napier, 11th June 1740; and Beatson against Beatson, 30th June 1747, voce Mutual Contract.

See Notes.

CONQUEST.

See Succession.

CONSIGNATION.

See Redemption.

CONSOLIDATION.

See Superior and Vassal.

COURTESY.

See Husband and Wife.

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