Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XVIII.
Where the Child will not represent his Father. - Where Children provided by a Contract of Marriage predecease their Father. - Where Provisions are made to Children nominatim, and one afterward succeeds as Heir.
Thomas Wood, as Administrator-in-law for his Children, v. Thomas Aitchison
Date: 26 June 1789 Case No. No 151.
The issue of children, predeceasing the term of payment, are entitled to that share which their parent could have claimed.
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John Aitchison, the father of Thomas Aitchison, in his marriage-articles, became bound, during the subsistence of the marriage, “to lay out L. 400 upon land in Scotland, or upon other good and sufficient security there, heritable or personal, for annualrent, and to take the rights and securities of the land, or of such other security for annualrent as aforesaid, in favour of himself and his wife, and longest liver of them, in liferent, and to the children or child to be procreated betwixt them, whom failing, to the said John Aitchison, his heirs and assignees whatsoever, in fee.”
Of this marriage there were four children, who survived their mother; but at the death of John Aitchison, the father, only one son, whose name was Thomas, was alive. Another of the children, however, a daughter, who had been married to Thomas Wood, left issue.
An action was brought by Mr Wood, as administrator-in-law for these children, against Thomas Aitchison, for having it found, that they had right to one half of the sums provided in the marriage articles. The Lord Ordinary gave decreet in favour of the pursuers.
The defender preferred a reclaiming petition, in which he contended, That although, in bonds of provision granted to children nominatim, and payable at the father's death, the right might transmit to the descendants of those who predeceased their father, the law was different where the provision was in favour of children nascituri. In that case, he contended, The children had only a contingent or eventual right depending on their surviving their father.
The Court were of opinion, that in all provisions of this sort, the issue of children predeceasing the term of payment, were entitled to that share which their parent could have claimed; and therefore
The Lords refused the petition.
Lord Ordinary, Justice-Clerk.For the Petitioner, Wight.
Fol. Dic. v. 4. p. 185. Fac. Col. No 75. p. 136.
