Scottish Court of Session Decisions

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

Import of a Provision to be a Bairn in the House.

Finlayson
v.
Veitch

Date: 8 February 1622
Case No. No 11.

A daughter was in her Contract provided to be a bairn of the house at her father and mother's decease. This was found to comprehend her portion-natural and her share of the dead's part.

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Janet Finlayson, daughter to umquhile Adam Finlayson, being married upon one Veitch, the said Adam obliged himself by contract, that the said Janet, notwithstanding of her forisfamiliation, should have her bairn's part of gear and portion-natural, with the remnant of his bairns the time of his decease, and of Elizabeth Wallace his spouse; whereupon the bairns of the said umquhile Janet Finlayson being decerned executors to their mother, who died after the decease of Adam her father, pursue the said Adam's executors for payment of her portion-natural belonging to her, as one of the defunct's bairns, and also for her part of the dead's third, who died intestate, and, consequently, claiming her part of the said defunct's third to be divided betwixt her and the rest of the defunct's bairns. Against which the defender alleged, That the foresaid clause of the contract gave her right only to the portion-natural, and could not be extended in her favour for any of the dead's part, which behoved totally to pertain to the bairns unforisfamiliated the time of the father's decease, who of the law only were his executors; seeing the pursuer Janet could not be his executrix of the law, being then forisfamiliated, as said is, at his decease. And as to the provision of the contract, he alleged, That by the express words thereof above written, the pursuer had right allenarly to the portion-natural, which excluded her from all benefit of the dead's part. The pursuer replied, That she behoved to have both a portion-natural and a part of the dead's third, seeing the contract appoints, that she should have a bairn's part and portion-natural with the rest of the bairns, notwithstanding of her forisfamiliation; which clause gave as much right to the pursuer of the defunct's goods as the rest of the bairns had, and as if she had been in familia: And it is true, that the rest of the bairns had both a portion-natural and a part of the defunct's third, he dying intestate; ergo, &c. The Lords repelled the allegeance, and found, that the clause of the contract gave the pursuer right both to the portion-natural and to a part of the dead's third, in respect of the clause in the said contract, which appointed her to have her bairn's part and portion-natural with the rest of the bairns, as if she had not been forisfamiliated, which the Lords found comprehended the defunct's third, as well as the portion-natural: Sicklike the Lords found, that the same parts were due to the pursuer, at the decease of the father, albeit the clause of the contract was conceived in these terms, viz. that the said Janet should have the said bairn's part at the decease of her father and mother, and that the defender alleged that the pursuer could not seek the same while the mother were dead, who was then living; which allegeance the Lords repelled, and found the same, as said is, due to be paid at the father's decease, seeing it could not hang in pendente in the mean time, while the mother died, and that the mother nor no other had right thereto, being that part of the gear which pertained to the defunct of his third and the bairns' legitim.

Act. Hope. Alt. Henrison & Aiton. Clerk, Gibson. Fol. Dic. v. 2. p. 276. Durie, p. 16.