Provisions payable at the Granter's Decease, or at a distant Term certain.
Isabel Gordon v. Katharine Ross
Date: 17 November 1757 Case No. No 13.
A person burdened his son with a provision to his grandson, payable at the granter's death, and subject to revocation. The grandson predeceased the granter, who never revoked the deed of provision. Found that the provision was rendered null by the predecease of the granter.
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Alexander Gordon of Kilgour executed a family-settlement, whereby, under other provisons, he assigned and disponed to his son John Gordon, part of his moveables, and a wadset of 10,000 merks, affecting Lord Sutherland's estate: After which followed these words in the dispositive clause; “With the burden always of my said son's payment-making to William Gordon, his son, and my grandson, of the sum of 3000 merks; and with the burden of payment-making to Isabel Gordon, my eldest grandchild, of the sum of 1200 merks; and of payment to them of the annualrents of the said principal sums after my decease, and termly during the not payment thereof; with full power to my son to intromit with, and dispose of the said moveables disponed to them, as said is, after my decease; and to my said son and his heirs, to charge and pursue for the said L. 10,000 Scots money foresaid; possess my wadset lands, whereby the same is due; use requisition, and all other things necessary thereanent; and anent the premises, to do as accords.” And the deed reserves a power of revocation to the granter, and dispenses with the not delivery.
Alexander died without revoking, and William, his grandson, died before him.
In a competition betwixt Isabel Gordon, his grand-daughter, and Katharine Ross, widow of John, and creditor to John upon his contract of marriage, Isabel Gordon insisted to be preferred upon the wadset in Lord Sutherland's estate; 1mo, in her own right, for the 1200 merks provided to her by her grandfather; 2do, in her brother William's right, to whom she was heir, for the 3000 merks provided to him by her grandfather.
To Isabel's claim for the 1200 merks, objected by Katharine Ross, That though burdening clauses of the nature of this one are generally understood to create a real lien upon the subject disponed; yet a distinction ought to be made betwixt the case where the debt ab ante existing, the granter only burdens his own subject with his own debt, and the case where, as in the present question, the provisions were by the disposition only created debts upon the disponee.
“The Lords found the provision a real burden on the wadset.”
To Isabel's claim, in her brother's right to the 3000 merks, objected for Katharine, That the sum being subject to the grandfather's power of revocation, payable only at the first term after his death, and interest from that term, ought to be considered upon the same footing as a bond of provision by a father to a child; having an implied condition, That if the child predeceased the father, or died before the term when the provision became due, it did not transmit to the child's heir.
Answered for Isabel, This was no bond of provision to a child, William had his own father living to provide for him; but was a debt created by Alexander upon the subject he disponed; and, therefore, like other debts, transmits to heirs. There is nothing in the circumstance, that it was subject to a power of revocation. The disposition to John vested in him the right immediately. The only effect of the power of revocation was, that the right so vested might afterwards have been defeated; but that never happened; and, therefore, it remained always vested in John, with the burden imposed upon it of the debt to William, and, consequently, to William's heir, though William happened to die before the sum was exigible.
“The Lords found, That the conveyance of 3000 merks, in favour of William, was vacated by his predeceasing the granter.”
For Isabel, Montgomery, Lockhart.For Katharine, Macintosh.
Fol. Dic. v. 3. p. 300. Fac Col. No 60. p. 98.
