Scottish Court of Session Decisions

Subject_1 IMPLIED CONDITION.
Subject_2 SECT. I.

Provision to Children payable at a certain ago.

Samuel Omey
v.
Janet Maclarty

Date: 19 November 1788
Case No. No 9.

A provision to a grandchild made payable on the grandchild's marriage, or attaining a certain age, lapses by his dying before that period Unmarried.

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James Crawford, by a trust-deed, settled on Archibald Omey, his grandson, by a son deceased, L. 600, “declaring, That the interest should be regularly paid to him from the first term of Whitsunday or Martinmas after the granter's decease, to his (Archibald's) majority or marriage, which ever of these should first happen, when the principal sums were to be paid by the trustees, and not sooner.”

Archibald Omey having died before his majority unmarried, and the money being claimed by Samuel and Mary Omey, his brother and sister, as his next of kin, Janet Maclarty, and other executors of Mr Crawford, who opposed this claim, contended, that the provision had lapsed by the death of the grantee, and

Pleaded, Though in proper bonds of provision, those granted by a father to his children, provisions made payable on the children's attaining a certain age, being intended for answering their occasions at that period, become ineffectual, if they shall die before it; yet the constitution of a legacy is understood to be independent of the term of payment. By the legatee's survivorship, the legacy vests, and the adjection of a term of payment serves only to postpone the time at which he or his heir is intitled to claim possession. Such, in conformity to the Roman law, was the decision of the Court, in the case of Burnetts contra Forbes, 9th December 1783, voce Legacy. Now, the sum in question is to be considered as a legacy, and not as a provision to a child; the granter not being the father but the grandfather. Besides, the interest having been immediately payable, the principal sum itself must of consequence have likewise been due.

Answered, As the above admission proceeds on the supposition of bonds of provision granted by a father being the just consequence of a natural obligation, so the same obligation lying on grandfathers in their order, It is evident, that there can be no distinction between that case and the present. As to the interests being due in the mean time, this was evidently a separate provision, and distinguished from that which was contingent on the event specified.

The Cause was taken to report, a number of other questions having occurred on the construction of Mr Crawford's settlements; when

The Court seemed to admit no distinction between the cases of a father and of a grandfather settling provisions to children or grandchildren. Some of the Judges too doubted the propriety of distinguishing between legacies and provisions to children, holding the rule of the Roman law as equally applicable to both, that dies incertus pro conditione habetur.

The Lords found, “That as Archibald Omey died before majority or marriage, the sum of L. 600 provided to him lapsed, and did not transmit to his nearest in kin.”

Reporter, Lord Hailes. For Omey, Wight. Alt. Macleod-Bannatyne. Clerk, Menzies. Fac. Col. No 47. p. 82.