A bond of provision being granted to a child in satisfaction of legitim, the bairns part goes wholly to the other children, and no part to the heir or executor, who are burdened with payment of the bond.
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The deceased Viscount of Oxenford having named his son executor and universal legatar, he gives a bond of provision to umquhile Mrs Mary, one of his daughters, in satisfaction of her portion natural and bairns part; there are yet three children beside the heir, and the said Mrs Mary did survive her father, and in the count and reckoning of his executry, the three surviving children claimed half of the moveables as the bairns part. It was alleged for the Viscount, the universal legatar, That a fourth part of the bairns part behoved to belong to him, which would have belonged to Mrs Mary; because the bond granted by the defunct being in satisfaction of Mary's bairns part, lier bairns part must come in place of it, and not accresce to the rest of the bairns, but must belong to him as executor and universal legatar; especially this bond being granted on death-bed, is only effectual as a legacy, whereby the defunct did burden his own dead's part, which can be no otherways understood than thus, that he would make up Mary's portion to L. 10,000, her bairns part being in the first end thereof; and it cannot be thought his meaning to exhaust his dead's part further, or to gift any thing to the rest of the bairns by the accrescence of Mary's part. It was answered, That such bonds of provision are most ordinary, bearing it to be in satisfaction of their bairns part, which has ever been so interpreted, that the portion of the bairn so satisfied accresceth to the rest of the bairns; and it was never heard, that the heir or executor burdened with such bonds of provision, did thereupon recur to seek that share of the bairns part which was satisfied by the bond of provision; neither is there any odds whether the provision were by legacy or bond, for the reason of recourse being, because the heir or executor is burdened to satisfy that bairn, and so in either case doth claim the share of that bairn; neither was it ever so understood, that fathers granting such bonds of provision did not thereby leave entire the bairns part to the remanent bairns.
The Lords found, that Mrs Mary's share of her bairn's part did accresce to the rest of the bairns, and did not belong to the executor, either as a part, or in place of any part, of the L. 10,000, but the same did solely burden the dead's part.
