Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XIII.
What understood to be sufficient implement.
Jack v. Jacks
Date: 13 December 1671 Case No. No 103.
A bond to children, in terms of their mother's contract, sustained, althought virtually revoked in posterior contract by the father, on his son's marriage.
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Umquhile Andrew Jack, in his son's contract of marriage, having disponed to him his lands, and obliged him to free the same of all debt, and having children of a second marriage, to whom he granted a bond for love and favour, anterior to the contract, whereupon the bairns have apprised the lands disponed by the contract; Christian Jack one of the marriage pursues reduction of these revoked in bonds and apprising, in consequence on two reasons; 1mo, That the bond was null, being subscribed by two notaries, but having only three witnesses, whereas the law requires four; 2do, That the bond being for bairns' provisions, was revocable by the father at his pleasure, they being in his family, and was revoked by his son's contract of marriage, as was found in Glencorse's case, (see Appendix.) It was answered, That albeit de jure four witnesses be required to the subscription of notaries, yet three have been found sufficient, where the verity of the fact is adminiculated, as in the case of contracts of marriage whereupon marriage has followed, because such contracts are ordinary and presumed; and for the same reason bonds of provision to children, which are as ordinary, especially being of a second marriage, wherein there are obligements in favour of the bairns, and the same ground differences the case from Glencorse's; and the father could not justly by his son's contract of marriage recal children's provisions, which he was obliged to give. It was answered, That the bond bore for love and favour, without any relation to the contract. It was replied, That if the bonds exceeded not the contract, they behoved to be in implement thereof, though they bore not the same expressly.
The Lords inclined to sustain the bond, if it quadrate with the contract of marriage; but before answer, ordained the contract of marriage to be produced.
Stair, v. 2. p. 22.*** Gosford reports this case:
In a reduction of a bond granted by Andrew Jack for the sum of 5000 merks in favours of Claud and Grizzel Jacks, bairns of a second marriage, at the instance of Christian Jack and her tutor, as heir to John Jack, eldest son to the said Andrew, to whom, by contract of marriage, he had disponed his lands of Tannochside, and which were comprised upon the foresaid bond of 5000 merks, upon this reason, That the said bond was null, being subscribed only by two notaries and three witnesses, whereas the act of Parliament did require four witnesses; it was answered for the defenders, That the said bond being for implement of a contract of marriage, whereupon marriage followed, the want of one witness could not make the bond null, being so adminiculated, as had been found in many cases where infeftments and sasines depending upon contracts of marriage, were sustained, albeit otherwise they were and might be reduced.
The Lords did find, that if the sum of 5000 merks contained in the bond was in the obligement of the contract of marriage, that it could not be reduced upon that nullity; but if it did exceed the provision of the contract, it was null by the act of Parliament, and no better than other bonds so subscribed.
