Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. V.
The Husband being bound in a contract of marriage to provide the issue of the marriage, the heir or children, as creditors, may insist for implement without a service.
Wallace v. Wallace
Date: 13 January 1665 Case No. No 20.
One became bound in his contract of marriage to lay out a certain sum to himself and spouse in liferent, and to the children of the marriage in fee. The children, without necessity of a service, were found entitled to pursue their father's representatives for implement.
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Umquhile William Wallace of Maywholme, by contract of marriage with umquhile Margaret Kennedy, is obliged to employ the sum of 5000 merks received by him in name of tocher, in favour of themselves in liferent, and to the bairns, one or more, to be procreated of the marriage in fee. William Wallace, being the only bairn of the marriage, and his tutor, pursues Hugh Wallace, brother and executor confirmed to the said umquhile William, for implement of that clause in the contract. It was excepted, No process at the bairn's and his tutor's instance for implement, because the bairn was not heir served and retoured to his father. The Lords found, That heirs or bairns mentioned in a contract of marriage, may pursue for implement of the obligement without necessity of a service.
Fol. Dic. v. 2. p. 278. Newbyth, MS. p. 18.
*** Gilmour's report of this case is No 3. p. 9650, voce Passive Title.
