An obligation in a contract of marriage binding the husband to employ a sum to himself, wife, and children, whom failing, to the wife's executors becomes void, if the children survive the dissolution of the marriage.
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By contract of marriage, James Johnston is obliged to employ upon land, annual-rent, or merchant-trading, to himself, and Margaret Wauchop, his spouse, and to the longest liver of them two, and to the bairns to be gotten betwixt them, 1600 merks, and failing of bairns betwixt them, 400 merks to the heirs, executors, legatars, and assignees of the said umquhile Margaret; and Marion Wauchop, only sister and heir served to the said umquhile Margaret and John Lutfit, her spouse, having obtained decreet against the said James, for the employment of the said sum, conform to the said contract, for the use of the said Marion, (there being no bairn in life gotten of the said marriage), and thereupon charging the said Johnston; the Lords suspended the charges, in respect there was a daughter, who survived the mother, and who was executrix confirmed to her mother, albeit that bairn died within four or five weeks after her mother, seeing, by the existence once of the daughter, albeit shortly thereafter dying, the condition of the contract was purged; for it is sufficient once habuisse liberos, quam vis statim decesserint; and the confirming of the bairn executrix to her mother, to whom the benefit of that clause was alleged to pertain, being conceived in favours of the executors, was not much respected, seeing the bairn who was executrix died, this debt not being executed before her decease; so that if that debt fell to the executors, and not the heirs yet the same would belong to those who would be executors again de novo to the relict, who was dead; and this charger was the same who was served heir, and only would be executor in law; but it was found, that the once existence of a bairn, although she had never been confirmed executor, took away the benefit of that clause of the contract of marriage from any other, either heir or executor to the defunct.
For the Charger, Dunlop.Clerk, Gibson.
Fol. Dic. v. 2. p. 395. Durie, p. 890.
