A legacy, to be divided at the legatee's death, among her children, falls by the legatee's predecease.
Click here to view a pdf copy of this documet : PDF Copy
William Scot executed a testament, by which he appointed his son James his sole executor, and universal legatary, with a clause, whereby he obliged him to pay “to Isobel Swanston, my well-beloved spouse, the sum of 1500 merks, and that at the first term of Whitsunday or Martinmas after my decease, with annualrent after the term of payment; and which sum of 1500 merks, the said Isobel Swanston shall leave and distribute among her daughters at her death, as she shall think fit.”
Isobel Swanston predeceased her husband; and be having died some years after, an action was brought against George Carfrae, the disponee of James Scot, the son, at the instance of his sisters, for payment of the 1500 merks provided to Isobel Swanston, the fee of which they contended was vested in them by their father's settlement.
Pleaded for the pursuers; The 1500 merks were indeed made payable to Isobel Swanston; but she had only a right of liferent in that sum, which she was bound to divide among her daughters, in whom, of consequence, the fee was vested; nor can they be deprived of their right by the predecease of their mother, more than the mother could have forfeited her liferent by the predecease of the daughters. Her repudiating her interest in the legacy could not have affected them, and the accident of her death cannot have a stronger effect.
Answered for the defender; By the conception of the deed, the fee of the 1500 merks was intended to be in the mother. A limited fee indeed, which she was bound to transmit to her daughters, in the event of the provision taking place, but which might have been affected by her creditors to the exclusion of the daughters, who therefore had no right of fee, nor any thing more than a hope of succession.
But this right of fee never was vested, even in the mother; it was pendent on the uncertain event of her survivance, and cut off by her predecease; dies incertus habetur pro conditione.
The precise case is decided by Voet; “Si testator legaverit Titio, pro se et hæredibas suis, Titius autem vivo testatore moriatur, hæredibus Titii legatum non debetur;” ad tit. Qu. dies leg. num. 1. Id. ad tit. de mort. caus. donat. num. 7.
And, agreeably to this, the Court have decided in the case of provisions payable at a certain age, or at the decease of the granter, in various instances, to be found in the Dictionary, voce Implied Condition, and in sundry later cases, as 4th June 1741, Paterson. contra Paterson, No 24. p. 8070.; 1st February 1749, Bells contra Mason, No 6. p. 6332; and 18th December 1760, Macculloch contra Ross, No 18. p. 6349.
The Lords found, that the provision of 1500 merks fell by the predecease of Isobel Swanston, and did not transmit to her daughters.
