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Scottish Court of Session Decisions >>
Laurence Ord v Innesses. [1685] Mor 4248 (00 November 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor1004248-040.html Cite as:
[1685] Mor 4248
In questions between parents and children, who understood to be fiar.
Subject_3 SECT. I.
Right taken conjunctly to parent and child.
Laurence Ord v. Innesses
1685.
November. Case No. No 40.
A father was obliged to pay 1000 merks to his daughter, who was married, and the children to be procreated of her body; whom failing, to her nearest heirs. The Lords found, that the fee of the whole 1000 merks belonged to the mother, the children not being procreated at the time.
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A father being obliged to pay 1000 merks to his daughter, who was married, and the bairns to be procreated of her body; which failing, to her nearest heirs; the question arose, if the bairns to be begotten were to be considered as conditional co-creditors for the half of the sum, or if only as substitute to their mother, in the case of their existence.
It was alleged for the first part of the question, That obligations might be granted to children to be born, which in effect are conditional, and purified by their birth; for the brocard, that a fee or obligement, cannot be in pendente, is not to be taken judaice; and it is but a notion in law, that the rights and obligements of a defunct are in hæreditate jacente, till the heir enter.
The Lords found, That the fee of the whole 1000 merks belonged to the mother, the bairns not being procreated at the time; for that the fee could not be in pendente. But if there had been children now competing, it is like they would have had right to the half as institute. But this decision seems not to be very consequential to the analogy of law; Castlehill's Pratt. tit. Bonds, No 164.
Fol. Dic. v. 1. p. 301. Harcarse, (Bonds.) No 203. p. 46.
