Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Scot of Bevelay v. Binny his Mother-in-Law
Date: 2 July 1670
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This was a pursuit at the pursuer's instance, as heir to his father, against his father's relict, as executrix to him, for implement to him of an obligement contained in his father's contract of marriage with his mother, his first wife, obliging him to employ the sum of to the heirs of the marriage; which he craves to be fulfilled to him as heir of provision of the said marriage.
Alleged,—The obligement which is the ground of the pursuit is heritable, viz. to employ upon land or annualrent, and therefore is not prestable by the executor, but only by the heir, which the pursuer's self is; and so the obligation is confounded, he being both debtor and creditor to himself; and alleged the practique Wilson, where this was found.
Answered,—That the same being only a destination, it noways made the obligement heritable.
My Lord Stair was content to give them the Lords' answer on the same. Vide Dury, 12 March, 1622, Fairley.
