Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. IV.
Import of a Provision to Bairns beside the Heir.
Edgar v. Edgar
Date: 17 January 1665 Case No. No 17.
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A Husband in his second contract of marriage, obliged himself and the heirs of the first marriage, which failing, his heirs and executors, to pay to his children of the second marriage 4000 merks: The heirs of the first marriage failed: There were two children of the second marriage, whereof one was heir to the defunct: In this case the heir, though a child of the second marriage, was excluded from any share of the 4000 merks. Here the heir of the first marriage was never served heir.
Fol. Dic. v. 2. p. 278.
*** This case is reported by Stair, Newbyth and Gilmour, No 1. p. 6325., voce Implied Condition; but, from a subsequent memorandum of the case made by Newbyth, it would appear that the decision had been altered, as follows:
1665. July 10.—In the action Edgar against Edgar, mentioned the 17th January last, (voce Implied Condition,) the Lords found that Anna Edgar could only have right to the half of the 4000 merks; viz. 2000 merks in regard of the conception of the words of the contract of marriage, and that there were two elder brothers which were both dead, whose parts did belong to the said David Edgar the defender, who was the person surviving, in whose favour the provision was conceived.
