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Scottish Court of Session Decisions >>
Patrick Gordon of Myreton v The Creditors of Nairn of Saintford. [1709] 4 Brn 751 (29 June 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040751-0255.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Patrick Gordon of Myreton v. The Creditors of Nairn of Saintford
Date: 29 June 1709
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In Saintford's contract of marriage there is a clause, that either the lands are already, or may be, tailyied to the heirs-male; in which case, if there be only daughters procreated, they will be excluded from the succession; therefore, he obliges himself to pay to the said daughters the sum of 18,000 merks at their age of fourteen, with annualrent thereafter, and which sum they shall accept in full satisfaction, and shall be obliged to renounce and denude in favours of the heir of tailyie. Saintford dying, and leaving only one daughter of this marriage, and she being married to Captain Patrick Gordon of Myreton, he finding that the lands held ward, and were recognosced, he procures a gift of recognition; and, pursuing a declarator, and for maills and duties, he insisted, primo loco, to affect and burden the lands with the £1000 sterling provided to the daughters of that arriage, the case having existed that there were no sons.
Alleged for the other Creditors,—That the case wherein the £1000 sterling was provided to the heirs female of that marriage had never existed; seeing, by the narrative of that clause, it was only to be due to the daughters in case they were debarred from the succession by a tailyie of the said barony, made or to be made; but, ita est, it is not pretended that the said condition was ever purified, or that ever the estate was tailyied to heirs-male; in which event only they were to have right to the said L.1000 sterling. And so the daughter, being heir of line, has right to the estate of Saintford; and, if it were not exhausted with debt, might enter, there being no tailyie to debar her: and, if she find that succession not only unprofitable but dangerous, yet she may not repudiate it, and retain a faculty of electing the L.1000 sterling provision, to which she can never recur, it being extinct by his not making a tailyie.
Answered for the Daughter,—That the narrative and supposition of a tailyie is fully cleared by the subsequent clauses, making the L.1000 sterling payable at a precise determinate time, with annualrent thereafter, and execution to pass against the father for implementing the same; which is impossible if it had been conditional. And the daughter has her election to betake herself to the estate, or to the foresaid provision; as was found, 26th July 1677, Stevenson against Stevenson.
Replied,—It is against the conception of the clause, the meaning of parties, and the analogy of law, to make the daughters creditors in that sum, unless a tailyie were produced to debar them from the estate; and so it was decided, in a parallel case observed by Dirleton, 20th June 1672, Gray against Forbes.
The Lords, by a plurality of seven against six, found the daughter was not a creditor in that L.1000 sterling obligeaient, which was only conditional, in case she had been debarred by a tailyie; and therefore preferred the other creditors to her, unless she can prove there was a tailyie.
