The husband's children of a former marriage come in with the wife's executors to make a tripartite division.
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The deceased Thomas Gibson having begotten a daughter, the only bairn of his first marriage, after whose decease, he having married Marjory Murray, his second wife, who dying also before her husband; Chapman, her executor, pursues the bairn of the said first marriage and her spouse, to make payment of the equal half of the goods, which the said umquhile Thomas Gibson had the time of the said Marjory her decease; wherein the Lords found, that the said relict, nor her executors, had no right to the half of the said goods, but only to the third part, seeing there was one bairn living the time of the relict's decease, whereby her husband's gear could not fall in a two-fold division, but in a threefold division. Neither was it respected, as the pursuer replied, that this bairn was not a bairn of the second marriage; and also he alleged, that she is that person that is heir, and hath gotten a great inheritance, so that she cannot claim any part of the moveables, being heir by her heirship. This was not respected, for it was found nevertheless, that the testament ought to have a threefold division; and albeit she be heir now since her father's decease, yet her father being then living when Marjory Murray, the second wife, died, she could not be then respected as heir, but as a bairn; for heir she could not be, her father being in life; and seeing there are no more bairns but she, she ought to have a bairn's part also; though it were proper to other bairns, if any had been, to have excluded the heir, as is not in this case. And it being also alleged, that by contract of marriage betwixt the said Thomas Gibson and his second spouse, it was provided, that the husband's goods should pertain to him and his executors, and the wife's to her and her executors, and none of them should seek or have right to any of others gear, but to their own allenarly; this contract being alleged not to be obligatory to prejudge the defunct, nor her executors, in her part of the husband's goods, because he alleged it to be a contract contra bonos mores, et contra leges, et consuetudinem patriæ, and against the right and division of goods, observed ever in this kingdom betwixt man and wife; this allegeance against the contract was repelled, and the contract found good and lawful, and the allegeance thereon sustained.
Act. ——.Alt. Craig.Clerk, Gibson.
Fol. Dic. v. 1. p. 543. Durie, p. 591.
