Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XII.
Provisions to Children when Prestable. - Provisions in a certain Event.
Mr Robert Irvine v. Elizabeth and Jean Irvines
1687.
February—. Case No. No 90.
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A man having obliged himself to provide 4000 merks to himself and his wife in conjuuct fee and liferent, and to the bairns of the marriage in fee, and to pay the money to the bairns, the next term after their mother's decease, she predeceasing, the children pursued their father for payment.
Alleged for the defender, That the provision to pay the 4000 merks to the pursuers, the first term subsequent to their mother's decease, supposed her to be the surviver, and was not intented as a renunciation of the father's conjunct fee.
The Lords found the father had the liferent of the sum during his life.
Fol. Dic. v. 2. p. 285. Harcarse, (Contracts of Marriage.) No 383. p. 99.*** Fountainhall reports this case:
1687. February 23.— The case of Irvine and her curator against Mr Robert Irvine her father was reported by Drumcairn, being a pursuit for employing the sums contained in her mother's contract of marriage. The Lords modified 500 merks to be paid by him to her for bygone aliment, and find it relevant to oblige the defender to secure the pursuer in the terms of the obligement for 4000 merks, that the defender the father has acquired the said sum, and in a condition to employ it; and as to the other obligement of other 4000 merks, decern him to employ it in the terms of the contract, and reserving his own liferent. This was contrary to a former interlocutor on Tarbet's report, whereby the father was found dominus and fiar of the sums, and that the provision was only a destination of succession, if he disposed not otherwise on them. Against this, Mr Irvine gave in a bill, alleging, 1mo, The conquest must only be understood of what he acquired during that marriage with her mother, he having many children now of a subsequent marriage; 2do, That having two daughters of that first bed, he has the power of distributing it as he finds them deserving, and she having misbehaved, he will give it to the other, a father being best judge of that.
