Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. I.
In Provisions to the Issue of a Marriage, wheather the Children succeed per captia, or if the Heir is preferred?
Scot and Arthurs v. Charles Scot of Bonnington
1684.
February. Case No. No 6.
Found, that children representing their father must receive a sum divided per capita, and the eldest have one share.
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One being obliged, in his contract of marriage, to provide L. 20,000 upon land to himself and his wife in liferent, and to the heirs of the marriage in fee, with a quality, That the same should be proportioned among the children at his sight; and that the wife surviving should restrict herself, and pass from that part of the annualrent effeiring to the proportion of the child or children, so soon as they came to be married; by the infeftment upon the said contract, the fee is provided to the heirs of bairns. The eldest son petended to be fiar of the whole sum, as the heir of provision.
Answered for the younger children; That heirs in a second contract of marriage are understood bairns in a competition among themselves; 2do, The clauses in the contract reserving power to the father to divide the sum, and the provision to heirs was rational, that the children might represent the father, and be liable to pay his debt; 3tio, The eldest brother being now general heir, upon the decease of the children of the first marriage, he ought to have no share of the L. 20,000.
The Lords found, That the children must represent their father, and that the sum divided among them per capita, the father having made no division in life, and that the eldest son had one share thereof, and no more.
Fol. Dic. v. 2. p. 275. Harcarse, (Contracts of Marriage.) No 345. p. 93.
