Scottish Court of Session Decisions

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

Where the Provision is not made by a Contrast of Marriage.

Helen Binning
v.
James Binning

Date: 21 January 1767
Case No. No 155.

Where children predecease their father, the provisions made for them, in the father's settlement, go to grand-children, though the heirs of the children be not mentioned.

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In 1733, James Binning executed a deed of settlement of his affairs, giving certain liferent-provisions to his wife, and portions to his younger children. He nominated his wife, Helen Glendinning, sole executrix, with the burden of his debts, and aliment of the younger children; and then, with consent of James Binning, his eldest son, he binds and obliges himself, his heirs, &c. to content and pay to Patrick and Margaret Binnings, his younger children, 500 merks Scots each, at the first term after their mother's death; and, failing either of the said children by death, before majority, the portion was to divide equally between the eldest son and surviving child. Then follows a clause dispensing with the not delivery, and declaring that the same should be as sufficient to the wife and younger children, as if a separate disposition, or bonds of provision, had been delivered to them respectively.

Soon after executing this deed, Patrick Binning, the second son, married; but there was no contract of marriage, or settlement, entered into by him on that occasion. Patrick did not long survive his marriage, having died many years before his father or mother, leaving one daughter, Helen, who, upon her father's death, was carried to her grandfather's house, where she resided during his life.

During the lifetime of Helen Glendinning, the grandmother, the younger children had no claim for their respective portions, as the funds were liferented by her; but, upon her death in 1762, Helen Binning, the daughter of Patrick, brought an action against her uncle James, her father's elder brother, concluding for payment of the sum of 500 merks, as the portion settled by her grandfather upon her father, Patrick. The Lord Ordinary sustained the defence, and assoilzied. Helen reclaimed to the whole Lords.

Pleaded for James, the defender, That Helen's father, in whose right she claims, having died before his mother, who liferented the subjects, his heirs were not entitled to the sums provided to him, agreeably to the maxim of the Roman law, that dies incertus pro conditione habetur. And, secondly, That as the deed was of a testamentary nature, the legacy became void by Patrick's predeceasing his father, agreeably to the other rule in the Roman law, quod morte legatarii perit legatum; and, in support of this, sundry authorities from the Roman law were quoted; and the decision, Bell against Mason, in February 1749, No 6. p. 6332. observed in the Remarkable Decisions referred to; and also Edgar against Edgar, July 1665, No 1. p. 6325.; Belsches against Belsches, 22d February 1677, No 2. p. 6327.

Answered for Helen, Her claim was favourable, being that of an only child for a father's portion, who had got no part of his father's effects, and the defences insisted upon did not apply. The first, founded upon the maxim of the Roman law, dies incertus pro conditione habetur, can have no effect in this question, as the term of payment, though suspended to a future day, could not render the obligation conditional, unless it was uncertain whether the day of payment should ever exist, which could not be maintained in the present case, unless it was alleged to be uncertain whether Helen Glendinning should die or not; and if the defender's plea was good, every obligation, however pure when the term of payment was suspended, would resolve into a conditional obligation, Campbell of Calder against Ruth Pollock, 2d December 1717, No 11. p. 6342.; Kelso against M'Cubby, 25th November 1686, No 4. p. 6330.

As to the second defence, That this 500 merks was of the nature of a legacy in favours of Patrick, and fell by his predeceasing his father; the defender seems to misapprehend the nature of the deed; for, although the first part of it has the appearance of being testamentary, yet the latter part of it, which concerns the provisions to the younger children, is of the nature of a bond of provision in favour of those younger children; and, as it contains a clause dispensing with the delivery, it must have the same force as if a bond of provision had been executed and delivered to Patrick. The governing rule, in succession is the intention of the deceased person, either expressed or presumed. And this principle has been justly established by the laws of all nations; and it must be presumed, that a father intended the provision made to a son, to extend to grandchildren, as no principle can be conceived, which would lead a father to provide for his son, and yet leave his grandchildren destitute; and this differences the case of childrens' claims for their fathers' provisions, from all the other cases resorted to by the defender, L. 102. D. De Cond. Demonstrat; Magistrates of Montrose against Robertson, 21st November 1738, No 50. p. 6398.

“The Lords altered the Lord Ordinary's interlocutor, and found the defender liable.

For Helen, Henry Dundas. For James, Archihald Cockburn. Clerk, ——. Fol. Dic. v. 4. p. 185. Fac. Col. No 51. p. 90.