Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XIII.
What understood to be sufficient implement.
William Kinsman v. John Scot
1687.
December. Case No. No 107.
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A man having obliged himself, in his contract of marriage, to provide his lands to the heirs of the marriage, which failing, to his wife's heirs, executors, and assignees, did, after her decease, commence a declarator, that the cause was exorbitant, and that the wife's heir's being liable, as heirs of provision to him, he as fiar might dispose of his estate.
The Lords, considering, that this was a provision in a contract of marriage, and not a mere voluntary destination, they did not declare as was desired, reserving the consideration of the particular deeds, when done by the husband, in their proper place, according as they should be found rational or not.
Harcarse, (Contracts of Marriage.) No 393. p. 103.*** Sir P. Home reports this case:
By contract of marriage betwixt William Kinsman and Agnes Scot, the said William having provided all his estate, both heritable and moveable, in favours of himself and his wife, the longest liver of them two, in conjunct fee and liferent, and the children of the marriage, which failing, to the wife's heirs and assignees; and in case the husband should survive the wife, and marry again, he should have power to provide his wife to the half of his estate, without prejudice to the said Agnes Scot, his first wife's heirs, to succeed to the fee, after the second wife's decease; and in case there were children of the second marriage, and that there were no children of the first marriage, then the children of the second marriage were to have the half of the fee of their father's estate; and the wife being deceased, and there being no children of the marriage, Kinsman the husband pursues a declarator against John Scott, for declaring that the clauses in the contract of marriage, in favours of the wife's heirs, did import only a substitution and destination of succession, and that, notwithstanding thereof, he was still fiar, and might dispose of his estate as he pleased. Answered; That the termination of the fee being to the wife's heirs, the husband cannot, by any voluntary gratuitous deed, alter or evacuate the same, especially he being limited by the subsequent clause in the contract, by which it is provided, that, in case of his second marriage, he might provide his wife in liferent, to the half of his estate, without prejudice to the first wife's heirs, to succeed to the fee, after the second wife's decease; and that if there were children of the second marriage, they only should have right to the fee, in case there were no children of the first marriage. The Lords sustained the allegeance proponed against the declarator, in respect the husband's fee is qualified by the posterior clause of the contract, and therefore assoilzied the defender from the declarator.
