Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. II.
Import of a Provision to be a Bairn in the House.
Irvine v. Mr William Crawfurd
1686.
March. Case No. No 13.
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A father having provided his eldest daughter, in her contract of marriage, to 3000 merks, and also obliged himself, that she and her children (should) succeed to a share of his estate and goods with the rest of his own bairns, did, at the time of his decease, after the rest of his children were also provided, dispone to his eldest son, by a lucrative deed in liege poustie, his estate, consisting of bonds and goods; which disposition was quarrelled by the daughter's children, as made in defraud of the obligement in their mother's contract of marriage.
It was alleged for the defenders; That the obligement imported only, that the daughter was not cut off from her legitim; and the father may at any time in his liege poustie dispose of his moveables, even titulo lucrativo, without regard to the legitim, though he could not prejudge it by a testamentary deed.
(Answered;) The obligement imports more than a reservation of the legal provision of legitim, or third; for the latter implies the condition, if the defunct have goods the time of his decease; whereas, by the obligement, in prospect whereof the husband gave his wife a suitable jointure, the wife and her children of the marriage are creditors, and the contract is onerous; nor is the clause conceived thus, “without prejudice, &c.” but thus, “I oblige me, &c.”
The Lords inclined to prefer the children, in respect of the obligement.
Thereafter it was contended for the defender; That some rents uplifted for years during the father's life, were bona fide consumpti. This allegeance the Lords sustained.
Fol. Dic. v. 2. p. 277. Harcarse, (Contracts of Marriage.) No 381. p. 98.
