Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Laird of Balnamoon v. John Macintosh
Date: 9 February 1672
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This Macintosh having married his daughter on one Weymes, by the contract of marriage he is obliged to pay 2000 merks in name of tocher, to which 2000 merks Weymes is obliged to lay 3000 merks of his own monies; and which 5000 merks is provided to him and her and the longest liver of them two, in conjunct fee, and to the heirs of the marriage to be procreated betwixt them. Weymes being debtor to Carnegy of Balnamoon, and having no other way to pay him, he assigns him to that obligement in the contract of marriage, whereby Macintosh, his goodfather, is obliged to pay him 2000 merks; Balnamoon, charging for the sum, Macintosh suspends on this reason, that he was not liable to pay it simpliciter, but to pay it under this quality, that it should be employed first for the use of his daughter, and then for the children of the marriage; in respect of which destination he cannot pay it to this assignee.
To which it was answered,—That the charge at the assignee's instance, must be found orderly proceeded, notwithstanding of the reason; because any destination of the tocher contained in the contract of marriage, takes not away the husband's dominion therein, in so far as the wife is dead, and so her liferent there-of can never exist; and for the children they can lay no claim in it, because it is provided to the heirs of the marriage, and how long the father lives they cannot be heirs.
Replied,—By heirs must be understood bairns.
Duplied,—However heirs might be interpreted bairns in a man's second contract of marriage, yet it can never but be properly taken for heirs served and retoured in the first, as this was. Item, The father is doubtless fiar of the sum; and so may dispose and assign it at his pleasure, because the termination of the fee is on his heirs.
The Lords found the letters orderly proceeded, reserving action to Macintosh against the charger's cedent, to see the contract of marriage fulfilled to his grandchildren. This seems pretty hard, and is direct contrary to that decision in Dury, at the 20th November, 1623, Goodman of Kinblathmout. Vide infra November 1677, Barbara Grant against Janet Cuthbert, No. 647, § 4.
It were to be wished that some of the Lords' number, and the lawyers, did meet, and take to their consideration the import of all the clauses used in contracts of marriage, by explaining the ambiguity of the said clauses, and by setting down a certain rule whereby they may be equally and alike understood in all time coming. Vide infra, No. 351, [1undy against Lundy,26th June, 1672] in fine; and 396, [June, 1673;] and 430, [1auder against Alisone, November 1673.
