Scottish Court of Session Decisions

Subject_1 PROVISION TO HEIRS AND CHILDREN.

Dame Dorothea, &c Primrose
v.
The Lord Advocate

1754, Feb. 26.
Case No. No. 21.

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This claim on the estate of Sir Archibald Primrose, was founded on a clause in his contract of marriage in these words: “And further, in case there be no heir-male, but allenarly a daughter or daughters of the marriage, and that they shall be debarred from succeeding to the said lands by his other heirs-male,” then Sir Archibald obliged him to pay certain sums to the daughters, according to their number, to be divided as he should think fit, and that at the first term of Whitsunday or Martinmas after his death, with annualrent after the term of payment. Sir Archibald was attainted at Carlisle of high treason, and executed 15th November 1746, leaving an infant son and the four claimants; and the son died in January 1747. The foundation of the claim was, that though the son survived the father, yet he died before that their portion became due. Answered for Lord Advocate, They had no claim though he had died before the fattier, because the estate was vested in the Crown 24th June 1745; 2dly, not due, because the condition failed by the son's survivance. The Court was unanimous to dismiss the claim on the second answer; and that the term of payment of the portions could have no influence on the condition “if there be no heir-male of the marriage,” which always respects the time of the father's death; and I mentioned the case 7th July 1738, Drummond against Drummond;* and Drummore proposed to found our judgment on that sole reason; but the President said that as we were agreed to dismiss the claim, it was unnecessary to determine other points that were disputable, and perhaps not yet decided; that he looked upon these provisions payable after the father's death only as a sort of succession that could not compete with creditors, and not as proper debts; but that this was an improper case for considering or deciding that point, and therefore moved to dismiss the claim, without giving any reason, and to that we agreed.

* No. 2. voce Condition.