What imported by the terms (heirs or bairns,) as regarding liability.
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William Wallace, only son and bairn, of the first marriage, procreated betwixt William Wallace his father and his mother, pursues Hugh Wallace, his brother of the second marriage, as executor confirmed to their father, for employing of 5000 merks, which their father received in tocher with his mother, and was obliged, by their contract of marriage, to employ in favours of himself and his wife, and the heirs or bairns to be procreated betwixt them. Compears Margaret Kennedy the second wife, in whose favours the defunct is obliged to employ a sum of money, and to perform certain other obligements contained in her contract of marriage, and alleges, That no process can be sustained at the pursuer's instance as bairn, unless he were heir served; and, in that case, he would be obliged to fulfil the second contract of marriage, and be also liable to his father's debt. Likeas, that clause conceived in the pursuer's favours can be interpreted no other ways, than it would have been if his father had employed the sum in his own time, conform to the destination thereof; now, if he had employed the same, by infeftment or otherways, in favours of himself and wife, and the heirs or bairns of the marriage, he himself would have been fiar, and the pursuer behoved to have been served heir of the marriage thereto, and consequently liable ut supra. It was answered, That the obligement being conceived in favours of the heirs or bairns, it is equivalent as if the word bairns had only been set down; and it is conceived the word bairns is exegetic of the word heirs, and imports no necessary part of a service or retour; for, if there had been more sons of the marriage than one, all of them would not have been heirs, and yet the obligement is in all their favours; and there is a great difference betwixt a personal obligement in these terms, and an employment by an infeftment; for, where there is an infeftment, there is a real right, to which some must be served heir in special for transmitting the infeftment in the heir's person, either as heir of line, or heir of tailzie and provision; but, in this case, there is no necessity of a service or retour, being only a personal obligement in favours of the heir or bairn, which the heir or bairn may pursue without a service.
The Lords sustained the process at the instance of the bairn as bairn, reserving consideration, in its own due place, how far the pursuer might be liable to creditors; and, in the mean time, found, that the relict should be preferred to the pursuer, as to the liferent of any thing provided to her in liferent, by contract of marriage, but not what she might claim of the moveables jure relictæ.
