Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Ludovick Strachan
v.
Creditors of James Strachan of Dalhakie, his Father

Date: 2 June 1714

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[Kaimes, No. 64; Fac.Coll. No. 109.]

The said Ludovick was, by his father's contract of marriage, provided to 18,000 merks Scots, and the half of the conquest; and this provision is de- clared to be payable at the first term after the father and mother's death. Upon this obligation Ludovick adjudged; and the father's estate coming to a sale, the question was, Whether he was to be ranked with the onerous creditors?

Lord Kaimes was of opinion that no child nasciturus could be a creditor; but Lord Elchies said that there might be a right of credit in a child unborn, and that there was nothing to hinder a man to grant a bond to another man's children nascituris; but if the bond was to his own children, then there might be a doubt whether it was a right of credit or a right only of succession; and, in general, our law was inclined to give to children rather a right of succession than to make them creditors, by which commerce was impeded, and the father's free disposal of his effects hindered; but, however, if the provisions were so conceived as to be exigible during the father's life, in that case they were understood to give a right of credit, and it was upon this principle that the decision in the case of Easter Ogle proceeded, as is mentioned in the interlocutor upon that case; but here, as the provisions are not due till after the father's death, they only give, according to the genius of our law, a right of succession, And so the Lords unanimously found.

N.B. This was decided according to the principles of the civil law, by which; every thing collatum ad tempus mortis is understood to be taken as a succession. (See Cujacius ad Consult. 58.)