Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. X.
Sum destined to be laid out on Heritable Security.
Robertson v. Seton
Date: 19 January 1637 Case No. No 58.
A father, on his daughter's marriage, bound himself to pay a certain sum of tocher without annualrent till paid; the husband became bound to settle it and an additional sum heritably to himself and wife in liferent, and to the heirs of the marriage in fee; whom failing, to the husband's heirs whatsoever. The father having died before payment, his executor was found liable to pay the tocher, in respect of its not bearing interest; but it was also found, that it was payable to the husband's heir, and not his executor, in respect that it was to be heritably secured by him, and to pay annualrents to the relict.
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Thomas Robertson and Janet Seton contracting marriage together, in their contract, Seton, father to his future spouse, is obliged to pay to Robertson the future husband, in name of tocher, 2000 merks at the term appointed, to be employed as follows, and the husband is obliged to employ the same and other 4000 merks therewith of his own, "to himself and his said future spouse in liferent, and to the heirs to be begotten betwixt them heritably, which failing to the husband's heirs whatsoever." The husband dying without bairns, his brother is served heir to him, and charges the father, who was obliged to pay the 2000 merks in tocher as said is to him as heir, alleging the sum was only due to the heir in respect of the said destination; whereupon the father of the relict suspending, as being distressed for that sum by the heir on the one part, and by the executor of the deceased brother on the other part, claiming the same as a moveable sum, and so pertaining to the executor; and it being confirmed by the executor, and the heir and the executor contending therefor, the Lords found, that seeing this sum was appointed by the contract to be paid for that end, to be employed, and that the creditor, viz. the son-in-law, to whom it should have been paid, was obliged to employ the same ut supra, whereby both parties had agreed upon this destination of employment of this particular sum in hoc individuo, viz. of the 2000 merks obliged to be paid in tocher, therefore that the sum did pertain to the heir of the deceased husband, and not to his executor; and that albeit the executor had recovered the same from the father-in-law as a moveable sum quoad debitorem, which his executors might have been liable to have paid, if himself were dead, yet the executors of the creditor would ever have been subject to repay the same to the heir as due to him, and to whom the fee thereof pertained after the death of the relict, who had the right of the liferent thereof, conform to the contract foresaid, and because the heir would be subject to pay annualrent for this sum to the relict, of all terms since her husband's decease. The Lords found, that the father of the relict who was debtor of the tocher, albeit he was not obliged to pay annualrent by the contract, and albeit he was not, nor could not be charged to pay annualrent, and notwithstanding that he was never interpelled for payment, until lately since Martinmas last by the heir of the defunct, there being two other terms to run since the term of payment and since the husband's decease, whereby she might seek payment from the heir of the annualrent of these terms, the Lords found, that albeit the father was not obliged in annualrent as said is, yet seeing he retained the money after the term all this time in his own hand, that he ought to pay as much expenses to his heir, who is liable in the annualrent to the relict, conform to the contract, as effeirs to the quantity of the said annualrent for the said terms, according to the Lords modification, which they modified to L. 100 for the same, being three terms of all, for which the Lords decerned.
Act. Mowat.For the Heir, King's Advocate & Gilmor.For the Executor, Nisolson.Clerk, Hay.
Fol. Dic. v. 1. p. 369. Durie, p. 824.
