Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. VII.
Obligation by one in his contract of marriage, to provide certain sums or subjects to the issue of the marriage, how far effectual in competition with creditors?
Sir William Binning and Hugh Wallace v. Sir William Maxwell of Calderwood
Date: 15 December 1681 Case No. No 47.
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By contract of marriage betwixt John Maxwell of Calderwood and the Lady Millhouse, the husband being obliged to provide the conquest to the heirs of the marriage, and failing heirs-male, to provide to the heirs-female, if there be one daughter, 18,000 merks, and, if two, 24,000 merks; the Lords found the only daughter and child of the marriage not obliged to make up her title to the 18,000 merks, by serving herself heir of the marriage; and that, by heirs-female, in this case, bairns are understoood; because of these words, if there be one daughter, &c. seeing provisions to daughters use to be made as to bairns; although this was a contract of a first marriage, and the condition of the provision was in case of no heirs-male; but here the ancient estate of Calderwood was tailzied; and it was understood that the heirs-male of the marriage would succeed thereto, by virtue of the old tailzie, although there remained little of the estate then, but some reversions.
Fol. Dic. v. 2. p. 281. Harcarse, (Contracts of Marriage.) No 338. p. 82.
