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.
Hay v. Earl of Tweeddale
Date: 21 July 1676 Case No. No 21.
An heir of a marriage pursuing implement of the contract of marriage after his father's death, was found to require a service.
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William Hay of Drummelzier pursues the Earl of Tweeddale, as representing the late Earl his father, for implement of the contract of marriage in favour of the pursuer as heir-male to the said umquhile Earl of the second marriage. The defender alleged, No process, till the pursuer be served heir-male of the marriage. The pursuer answered, That he being the only child of the marriage on life, needed no service, and that heirs of a marriage are oft-times interpreted those who may be heirs, therefore needed no service, as heirs in tacks needs none. 2do, The pursuer offered to produce a service and retour cum processu. The defender replied, That titles ought to be produced in initio, and there is no reason to put the defender to run a course of process with the pursuer on so unequal terms, that if the pursuer find that by the event he had benefit, he will be heir, and if not, the defender shall not be exonered, because the pursuer's successors may enter heirs of the marriage, passing by the pursuer, and renew a pursuit against the defender.
The Lords sustained the process, the pursuer producing a retour in November next; and found, That in all obligements in favour of heirs of a marriage to be done before the father's death, as to employing of sums, taking of lands or other conquest to themselves and to the heirs of the marriage, heirs are there understood such as might be heirs, because otherwise the obligement would be elusory, but in other cases an heir of marriage requires a service as other heirs do. See Quod ab initio vitiosum.
