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A man being obliged, in his contract of marriage, to employ 1000 merks in wadset, &c. and to take the securities to himself and her in conjunct fee and life-rent, and to the heirs of the marriage in fee; which failing, 600 merks to return to her nearest heirs, and the rest to his heirs whatsomever;
The Lords found, That the husband was fiar; and that there being an heir of the marriage, who outlived the dissolution thereof, though he died before his mother, the condition of the return of the 600 merks failed, and was not purified; albeit the heir was not served, and that the pursuer contended a service was necessary to exclude the mother's heirs.
Thereafter it was alleged, That a conditional return of the tocher to the wife was not intended by the clause, but an absolute substitution to her heirs, as heirs of provision to the husband, so as quandocunque hæredes ex matrimonio defecerint, there was place for the wife's heirs, as the last substitute.
Which allegeance the Lords found relevant, and decerned accordingly in favours of the wife's next heir, who was not only cognosced as next to the wife, but also served heir of provision to the husband.
