Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. II.
Import of a Provision to be a Bairn in the House.
M'Math v. M'Call
Date: 14 February 1619 Case No. No 10.
A bond to a married daughter, bearing that she should have as much of her father the granter's gear, at his death, as the rest of the children, found to bind another child who was left executor, although he was assigned to a bond by his father, inhibition having been served before the assignation.
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Margaret M'Call and her spouse pursue Patrick M'Call her brother, executor to John M'Call their father, and M'Call her other brother, and heir, for his interest, for payment to her and her spouse of the equal half of the goods in their father's confirmed testament, and for the half also of the bonds libelled due to her father, and assigned by him to Patrick, whereto Patrick has right as executor or bairn; hoc medio, because their father by his bond was obliged, his heirs and executors, to make her at his death as meikle of his gear as any of his two sons, and should noways defraud her thereof, and that she should be equal portioner with his two sons. Alleged, By the bond she has no right but to such gear as he had the time of his decease, and it is confessed by the summons, that before his decease he had assigned the bonds libelled to Patrick. Replied, Oppones the bond and inhibition thereon, before the assignation. Repels the allegeance, in respect of the reply.—In that same case, defalcation of debts and legacies left to relict bairns and oyes, but only to strangers. Alleged, Defalcation of sums paid, given up by the heritor, owing to the persons specified in the testament, and of sums left in legacy, which debts and legacies he has paid. Find the allegeance relevant for the debts and legacies left by John, and contained in his confirmed testament, to infer allenarly defalcations of such debts and legacies as are left therein to strangers, noways of legacies left therein to the relict bairns and oyes.
Clerk, Hay.
Fol. Dic. v. 2. p. 276. Nicolson, MS. No 172. p. 122.
