Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Andrew Cant
v.
Westerton

1683. March.

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By a contract of marriage, the tocher being payable to the husband, his heirs and executors, and he obliged to add the like sum, and to employ the same on land or annual-rent to himself, and his wife in liferent, and to the bairns of the marriage in fee; the heir claimed the said tocher, as belonging to him by virtue of the said destination, and in the case of the Act of Parliament about securities, containing an obligement to infeft. Alleged for the debtor, That the sum fell under executry, and, as such an obligement is reputed moveable passivè, and prestable by the debtor's executors; so, e contra, it ought to be performed to these activè; nor is it in the case of the Act of Parliament, where the creditor intends to make his money heritable, by taking from his debtor an obligement to infeft; for here is an obligement by the father, who was creditor himself; and the heir cannot quarrel the not-performance on't. The Lords inclined to sustain the defender's allegeance, as being exclusive of the pursuer's title; but, before answer, ordained the executors to be cited. Alleged for the executors, That the sum, by the quality of the obligement to heirs and executors, is moveable. Answered, Esto the father had received the money, yet the obligement of destination, in favours of the heir, is prestable to him by the executors, and does not evanish by the father's death. Replied, The word heirs is not to be strictly understood to exclude bairns from coming in pro rata, though this be the contract of a first marriage; since, then, the younger children would not have any provision.

Page 8, No. 35.