Scottish Court of Session Decisions

Subject_1 CONDITION.
Subject_2 SECT. I.

Si Sine Liberis.

William Robertson
v.
Elisabeth Binning

Date: 22 November 1687
Case No. No 12.

There being a provision in a contract, that in case the husband died before his wife, leaving children, one or more, unprovided, and unforisfamiliate, then she should restrict her jointure to the half; and one child having survived the father, and died within a few months after, the relict was pursued to restrict. Alleged for the defender, The clause of the contract was calculated for a subsistence of the children, who now are dead, and so need none. The Lords found the wife ought to restrict to the half.

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There being a provision in a contract, that in case the husband died before his wife, leaving children, one or more, unprovided, and unforisfamiliate, then she should restrict her jointure to the half; and one child having survived the father, and died within a few months after, the relict was pursued to restrict.

Alleged for the defender; That the deceased surviving child being heir, and having both the fee and some tenements unliferented, cannot be said unprovided. 2. The clause of the contract was calculated for a subsistence of the children, who now are dead, and so need none.

Answered: By children unprovided we are not to understand such as have no legal provision, but such as have no bonds of provision.

‘The Lords found the wife ought to restrict to the half.’

Fol. Dic. v. 1. p. 188. Harcarse, (Contract of Marriage.) No 389. p. 102. *** Fountainhall reports the same case:

She had a liferent of some houses in Cupar of Fife from her husband, his brother, with this quality, that if there were children at the time of his death, she should restrict it to the half; and he subsumes there was a child surviving the father. Answered, The clause runs, “children unprovided or unforisfamiliate the time of his death;” but so it is he was the only child of the marriage, and had the fee of the hail, and so could not be interpreted a child unprovided. Replied, He had no provision from his father by any destination, and if she liferented all this house, then he had little or nothing in her lifetime. This being reported by Carse, The Lords found the existing of one child purifies the condition of the restriction contained in the bond, and therefore that the mother ought to restrict accordingly, notwithstanding of the words ‘unprovided, and unforisfamiliate.’

Fol. Dic. v. 1. p. 188. Fountainhall, v. 1. p. 481.