Scottish Court of Session Decisions

Subject_1 PROVISION to HEIRS and CHILDREN.
Subject_2 SECT. XII.

Provisions to Children when Prestable. - Provisions in a certain Event.

Janet Anderson
v.
Alexander Donaldson and Others

Date: 14 June 1766
Case No. No 99.

Provision to a daughter year and day after her marriage.

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Thomas Anderson, in his contract of marriage, became bound, in the event of there being three daughters, to pay them 30,000 merks, viz. “12,000 to the eldest, 10,000 to the second, and 8000 merks to the third.”

These provisions were made payable within year and day after the marriages of the respective daughters; but there was no clause of annualrent.

Four daughters existed of the marriage, Janet the youngest, married Robert Nicol, 27th March 1725.

Elisabeth, the second daughter, obtained an adjudication of certain tenements belonging to the father, for her 10,000 merks, 19th January 1726.

Janet brought a process in 1727, against her father, and her three sisters, for a share of the 30,000 merks, and obtained decree in 1729. for 4500 merks as her portion; so as that 1500 merks should be taken from the shares of each of the elder sisters, who were decerned to make payment thereof to Janet, and her husband, for his interest. See the decision, voce Implied Will, No 5. p. 6590.

In a ranking and sale of the subjects in 1732, Geddes of Scotstown was preferred, secundo loco, on Elisabeth's adjudication to which he had right; but under the burden of the 1500 merks decerned to be paid to Janet.

Scotstown, having become purchaser at the sale, disponed the subjects to Alexander Donaldson and others.

After Robert Nicol's death, Janet his widow brought an action of mails and duties for payment of the 1500 merks.

The defender did not dispute the principle, that diligences, led by the person in titulo for the time, accresce to the true proprietor. But he maintained, that Janet had no right to the sum, which being payable year and day after her marriage, and not bearing annualrent, was moveable, and belonged to her husband, jure mariti.

Elisabeth's adjudication was led after the marriage. If, therefore, it accresced to the 1500 merks, the accretion took place in favour of the husband to whom the debt belonged, and could not operate retro, so as to make the debt heritable before the adjudication was led, and deprive the husband of his jus quasitum in the sum.

Answered; Dies incertus habetur pro conditione. The provision was payable year and day after the pursuer's marriage; the pursuer might have died before that period; and, in that event, the 1500 merks would have remained with Elisabeth; but the adjudication was obtained within ten months of the pursuer's marriage. By that means, the whole 10,000 merks became heritable, so that the 1500 merks, eventually due to the pursuer, was heritable, not only before it was exigible by the pursuer, but before the jus crediti was vested in her person.

“The Lords found, That the pursuer, in virtue of the decreet 1729, is entitled to the sum of L. 1000 Scots, as a part of the portion of 10,000 merks provided to her sister Elisabeth, by their father's contract of marriage, for which Elisabeth adjudged his estate in the year 1726; and that the pursuer is entitled to insist for a decreet of mails and duties against the said tenements, for such part of the accumulated sums contained in the adjudication, as shall appear to arise from the said L. 1000 Scots, and interest thereof adjudged for; and decerned in the mails and duties accordingly.”

Act. Ja. Fergusson, jun. Alt. Lockhart. Fac. Col. No 35. p. 258.