Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 IMPLIED CONDITION.
Subject_3 Bond of Provision, containing heirs and assignees, falls by predecease of the Grantee.

Marion Russel
v.
James Russel of Ashiesteel

Date: 10 March 1769

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[Fac. Coll. IV. 177; Dictionary, 6372.]

Auchinleck. There is no direct evidence of the death of David Russel; but there are circumstances which show that he was reported and believed to have been lost soon after 1729, and he has never been heard of since that time. We must take the cause as it stands: Were the question with a child of David's, there might be a conjectura pietatis in favour of the child; but, in the common case, bonds of provision granted to children, who die before the granter, are thenceforth considered as of no consequence; and hence are often left uncancelled. The provision to heirs and assignees only relates to the heirs and assignees of the child.

President. It is admitted on both sides that David died. The plea of the pursuer and of the defender also is founded on this; so that the presumption of law, in favour of life, is out of the question.

Pitfour. If the father knew of the death of David, and did not destroy the bond destined to heirs and assignees, it may be presumed that he meant to let it go to heirs. He quoted a decision, Galloway, November 1730.

[This opinion was not relished, as being adverse to the sentiments and intention of every man in his settlements intra familiam.]

Kaimes. If David had left children, there might have been a difficulty; but there is none in the case which exists.

On the 10th March 1769, “the Lords sustained the defences, and assoilyied.”

Act. R. M'Queen. Alt. A. Lockhart. Reporter, Pitfour.