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.
Panton v. Irvine
1684.
March. Case No. No 24.
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A sum by a first contract of marriage, obliged to be employed to the man and his wife in conjunct-fee and liferent, and to the heirs of the marriage in fee; the daughter and only child of the marriage, after her mother's decease, pursued the father to provide the fee to her nominatim, and to have it declared, that he could not disappoint her expectation by any gratuitous deed.
Alleged for the defender; The obligement being in favour of heirs of the marriage, and no person appointed at whose instance execution should pass, the pursuer behoved to make up her active title by a service after the defender's death. 2do, Though the money were employed in the terms of the destination, it would be liable to the father's debt, seeing the heir could not quarrel his predecessor's deed, which himself is obliged to implement.
The Lords ordained the defender to implement, only by way of destination to heirs of the marriage, and gave no answer to the conclusion of the declarator.
Fol. Dic. v. 2. p. 278. Harcarse, (Contracts of Marriage.) No 367. p. 94.*** Sir P. Home reports this case:
By contract of marriage betwixt Francis Irvine and —— his spouse, he being obliged effectually and sufficiently to infeft, his wife during her lifetime, and the heirs to be lawfully gotten of the marriage, which failing, to the said Francis, his heirs and assignees, in certain lands, and the wife being deceased, and Anna Irvine being the only child of the marriage, and Henry Paton, her husband, having pursued a declarator against the said Francis Irvine her father, for fulfilling of the contract of marriage, and to secure her in the lands, and that it might be declared, that it is not lawful nor warrantable for him, by any voluntary or gratuitous disposition made, or to be made by him, of the said lands, to frustrate and evacuate the provision in the contract of marriage; alleged for the defender, That the pursuer had no interest to pursue any such action during her father's lifetime, because the provision being in favour of the heirs of the marriage, she could not have right to the same, unless she were served heir, which could not be done in the father's lifetime, and the defender being fiar of the lands, notwithstanding of any such provision, he might dispose of the lands as he thought fit. Answered, That such provisions in contracts of marriage, in favour of the heirs of the marriage, are always understood of bairns of the marriage who have right to such provisions without being served heir; and albeit, notwithstanding of such provisions, the father still remains fiar, so that he may contract debts, or grant rights of the same for onerous causes, yet he cannot make gratuitous rights to third parties in prejudice of the children, as was decided the 13th February 1677, Frazer against Frazer, supra, and if it were otherwise, it were easy for fathers, in such cases, to evacuate these obligements in contracts of marriage. The Lords found the father could do no voluntary or gratuitous deed in prejudice of his obligement contained in the contract of marriage in favour of the children of the marriage, and therefore ordained the father to infeft conform.
