Alimentary Provision, where the Grantee comes to be otherwise provided. Condition, Si sine liberis decesserit.
Next in Kin of Isobel Watt v. Isobel Jervie
Date: 30 July 1760 Case No. No 52.
A settlement by a man, of his whole effects, on his wife, is not voided by the unexpected birth of a child, who lives but a few months.
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In the contract of marriage betwixt William Watt and Isobel Jervie, she was provided to an annuity of 200 merks, and the children to 6000 merks. William Watt, some years after his marriage, having no children, made a settlement of the whole effects, heritable and moveable, which should belong to him the time of his death, upon his wife Isobel, but reserving a power to alter. At the death of William Watt, which happened about seven months after, his wife was near her time. She produced a female child, who lived but a very few months. The next in kin of the infant, believing that the settlement in favour of the relict was ipso facto voided by the existence of the child, brought a process against Isobel Jervie to account to them for her husband's moveables. Isobel Jervie was assoilzied upon the following ground, The settlement in her favour is effectual at common law. It was even effectual at common law against the posthumous child; and that child had no relief against it but in a court of equity. But a court of equity never declares void what is good by the common law. It only gives relief against such a deed as far as necessary to fulfil the rules of justice. Applying this principle to the present case, it is in the first place uncertain, whether the granter might not intend that the settlement should be effectual, even upon the supposition of a posthumous child. He must have known his wife's pregnancy, as in fact she was delivered no later than five weeks after his death. He had an opportunity to make an alteration; and since he did not alter, it has a strong appearance that he did not intend to alter. 2do, It is not likely, at any rate, that he intended an alteration in the case which happened of the child's living but a few months; for, in that case, the child was not in any degree hurt by the settlement. 3tio, Supposing an intention to alter in that case, yet this supposed intention could not have the effect to void the settlement ipso jure. It could only have the effect to privilege the child in equity, to bring a reduction of the settlement; and as this was never attempted, the settlement must stand good. See January 7. 1762, Jervey contra Watts, voce Legitim.
Fol. Dic. v. 3. p. 301. Sel. Dec. No 167. p. 228.
*** See Oliphant, 19th June 1793, voce Implied Will.
