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.

Grizel, Margaret, and Rachel Marjoribanks,
v.
Andrew Marjoribanks

Date: 1 December 1752
Case No. No 154.

No claim found to lie on a bond of provision to a younger son, at the instance of his next of kin, in respect he died before his father.

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In the year 1730, Andrew Marjoribanks of Marjoribanks, father of the above parties, executed a bond of provision in favour of his younger children. To each of his daughters he provided a certain sum, and 6000 merks to a younger son, Alexander. All these provisions were made payable at the first term after they should respectively attain the age of fifteen, with penalty and interest from the term of payment; and if any of the said children should die before majority or marriage, the portion of such child was to return to the disponer's eldest son for the time being. Alexander, above mentioned, attained the age of majority, but died before his father, in the year 1741. In the year 1742, Majoribanks being upon death-bed, restricted the provisions made to his three daughters, (the pursuers) to the sum of L. 525 Sterling; and declared that sum to be in full of all they could claim from him by and through his decease, or otherwise; and also revoked all former testaments by him made in their favour.

The pursuers, as three of the six nearest of kin to their brother Alexander, insisted against their eldest brother Andrew, for payment of their respective shares of the 6000 merks contained in Alexander's bond of provision; and pleaded, That the bond was due as soon as Alexander attained the age of fifteen; with this limitation, indeed, that if he died before majority, it should return to his father's eldest son; that therefore Alexander's right became absolute, and without limitation, from the time that he attained majority, and consequently was effectual to those who might succeed to him, either by will or ab intestato.

Pleaded for the defender, A provision made for a younger child is intended for the subsistence of such child after the death of his father; and, therefore, if the child die before his father, the provision is voided ob non causam; and this more especially, if such provision be constituted in a deed of a testamentary nature; it is then a legacy, or at least mortis causa donatio; and, according to a known maxim in law, must become void, by the predecease of the legatee or donatar. Alexander could never have claimed under this deed, which the father retained in his own possession, which he could have revoked at pleasure, and in effect did revoke; for it cannot be supposed that he intended that the provision in favour of his deceased son, Alexander, should still remain in force, when, by the deed 1742, he restricted the provision formerly granted to his daughters, and revoked all prior testaments made in their favour. Alexander then was not creditor in the bond 1730; and if he was not creditor in it, his executors cannot be received to claim under his right.

“The Lords found that the pursuers have no claim on the provision to Alexander, in respect he died before the father.”

Reporter, Elchies. Act. J. Ferguson, A. Lockhart. Alt. R. Craigie, & R. Dundas. Clerk Gibson. Fol. Dic. v. 4. p. 185. Fac. Col. No 40. p. 61.