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.
Frazer v. Frazer
Date: 13 February 1677 Case No. No 23.
An heir apparent was found to have interest to pursue his father to employ a sum for him in fee, as the heir of marriage and of conquest.
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Alexander Frazer pursues James Frazer of Drumballoch, his father, for employing and securing a sum of money, and all lands and conquest during the marriage betwixt him and his deceased wife, conform to the contract of marriage, by which he is obliged to bestow the sum of upon land or annualrent to himself, and his then future spouse in conjunct-fee, and to the heirs of the marriage, and to provide all lands and annualrents conquest during the marriage, the one half to her in liferent, and totally to the heirs of the marriage. He doth also pursue for modification of an aliment, his father being married again, and himself a man, that he may follow some employment. The defender alleged, No process, because the pursuer is neither, nor can be heir of the marriage, during his father's lifetime; and though employment were made, the father will be fiar, and so may dispone at his pleasure; and, by the contract, the half of the conquest is only provided to the wife in liferent, and totally to the heirs of the marriage, which cannot import the whole conquest, but the fee of the half; and as to the aliment, the defender is only obliged to entertain him in his family, having no particular calling obliging him to be elsewhere.
The Lords found, That the pursuer had interest as an apparent heir, to crave employment of the sums and others, conform to the contract; and as to the special sum, if the defender, as fiar, did any deed in prejudice of the security to be taken to himself and the heirs of the marriage, that the pursuer charge him to purge the same, or to employ the like sum; and as for the general obligement of the conquest, that the father might dispone for an onerous cause, or a rational consideration without fraud, but not by an act merely gratuitous; and found, that the word totally being unusual and dubious, was to be interpreted favourably for the heirs of the marriage, and against the contractor, and extended the same to the fee of the whole conquest, being an ordinary provision; but found the father's defence relevant against a modification of an aliment, that he would entertain the pursuer in his family.
