Clause bequeathing a legacy “to a mother and her children, begotten or to be begotten,” vests the former with the absolute see.
Click here to view a pdf copy of this documet : PDF Copy
A testator bequeathed a legacy in these terms:
“I give and bequeath unto my niece, Marion Smart, now the wife of Robert Mure, for the benefit of her and her children, begotten or to be begotten of her body, L. 300.”
Marion Smart survived the testator, and had two children, Adam and Jean. To the former she conveyed the legacy by her last settlement; upon which the latter alleging that the fee had never been in the mother, but in herself and her brother, sued him for payment of one half of the sum.
Pleaded for the defender; As a fee cannot be in pendente, that of the legacy in question, provided to a mother, and her children yet unborn, must of necessity have been in the mother, while the children could only have a spes successions. 7th July 1761, Douglas contra Ainslie, No 58. p. 2694.
Answered; A fiduciary fee may here be supposed to have been in the mother, for behoof of her children; Dirleton, voce Fee. Or rather the children, being in existence before the death of the testator, were themselves at that period vested with the right. For in testamentary deeds tempus mortis inspiciendum; and therefore the case was the same as if they had been born prior to the date of the legacy.
Replied; Such a fiduciary fee is never to be understood to take place, without the clearest evidence. And as to the children being considered as nati, and not nascituri, that is a circumstance of no moment. Begg contra Nicolson, No 44. p. 4251; Lamington contra Moor, No 45. p. 4252.; Porterfield contra Graham, No 66. p. 4277.; Cuthbertson contra Thomson, No 67. p. 4279.
The cause was reported by the Lord Ordinary; when
The Lords sustained the defence.
Reporter, Lord Gardenston.Act. Rolland.Alt. G. Fergusson.Clerk, Home.
Fol. Dic. v. 3. p. 211. Fac. Col. No 283. p. 435.
