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.
Innes v. Innes
Date: 7 January 1675 Case No. No 22.
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By a contract of marriage a sum being provided to the husband and his wife, and to the heirs male of the marriage, which failing, to the fathes's heirs-male whatsomever; an inhibition upon the said contract, at the instance of the eldest son of the marriage, and reduction thereupon, was not sutained; because the father was living, and the son neither was, nor could be heir to him, in respect the father was living; and though he were dead, the son could have no right, unless he were heir, in which case he would be obliged to warrant.
Reporter, Glendoich.
Fol. Dic. v. 2. p. 278. Dirleton, No 214. p. 99.*** Stair reports this case:
Alexander Innes, in his contract of marriage, provided a wadset-right of 3000 merks to himself and his future spouse in conjunct fee, and to the heirs of the marriage, and thereafter obligeth himself to re-employ that sum, with the 2000 merks of tocher to the wife in liferent, and to the heirs in fee, which failing, to his other heirs-male; and last there is a repetition of the same clause as to the tocher to be employed to the wife in liferent, and the clause hath borne to the heirs-male of the marriage and assignees foresaid, but is vitiated and made to the eldest son of the marriage. Upon this contract there is inhibition used, and thereupon there is now reduction of a right made to the Laird of Innes of the wadset, as being after the inhibition, after which the said Alexander Innes could not otherwise dispose of the wadset, than conform to the foresaid contract of marriage. The defender alleged, Absolvitor, because the pursuer, by this contract, had no interest to reduce his father's disposition of the wadset; because, as to the last clause in relation to the eldest son, it is vitiated, and for the former clauses, thereby the father is fiar, and the son hath no interest but as heir-male of the marriage, and so in his father's life cannot at all pursue, nor after his death, because he could have no interest till he was served heir to him, and so could not quarrel his disposition, but behoved to warrant it; and albeit upon such clauses the wife hath interest to cause the husband employ the sums for her liferent, yet the apparent heir hath thereby no interest, neither are such clauses in the condition of those clauses which have their effect during the defunct's life, wherein heirs are interpreted bairns.
The Lords found the vitiation visible by inspection, and had no respect to that clause; and found the former clauses could give the son no interest to reduce the father's deed.
Stair, v. 2. p. 302.
*** A similar decision was pronounced 18th January 1622, Silvertonhill against his Father, No 1. p. 9451, voce Pactum Illicitum.
