D. 172. Ramsay contra Carstairs. eod. die.
A Father, in his Contract of Marriage, being obliged to provide the Heir Female of the Marriage, and to pay to her 20000 lib. at her age of 15 years: and until then to entertain her: there being only one Child and Daughter of the Marriage, she and her Husband pursued the Father and his Curators, he being furious, to pay the said Sum. It was Answered, That the said Provision being only payable to the Heir Fe∣male, the Pursuer neither had nor could pursue upon that Quality and In∣terest dureing the Father's Life; specially seing both he and his Wife the Pursuers Mother, were living, and of that age, that they may have Heirs Male of the Marriage, or other Daughters: And if they should have Male Children, the Case and Condition of the Provision would deficere, and not exist; and if they should have moe Daughters, the Pursuer could not have Right to the whole Sum acclaimed It was Replyed, That the Fa∣ther was in effect civiliter mortuus; and the Pursuers would find Caution to refound, in either of the said Cases.
The Lords Found the Defence relevant, and that such Provisions being settled upon Heirs Female, by reason, and in case of exclusion of the Heirs Female of the Marriage, when Lands are entailed to Heirs Male, and there are no Heirs Male of the Marriage; The Term of Payment could not be understood to be during the Marriage. Strathurd Reporter. Gibson Clerk.