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.
Chalmers v. His Elder Brother
Date: 28 July 1688 Case No. No 26.
In a second contract of marriage, the husband became bound to employ 30,000 merks at the next term after the marriage to himself and wife in conjunct fee, and the children in fee. The children were fount entitled to sue for implement against the father's represetatives qua creditors, without a necessity of a service.
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James Chalmers, advocate, in his second contract of marriage, being obliged to add 20,000 merks to 10,000 merks of tocher, and to employ the whole at the next term after the marriage, upon good well-holden land, or other sufficient security, to himself and his wife in conjunct fee, and to the bairns of the marriage in fee; the bairn of the marriage, a matter of thirteen years after the death of both his parents, pursued his elder brother, as heir of the first marriage, to implement the contract, by employing the 20,000 merks in the terms thereof, and to pay the annualrent thereof since the father's death.
Alleged for the defender; No process at the instance of the pursuer, because he is not cognosced a bairn of the marriage. 2do, The father was obliged to provide the conquest of the first marriage to the defender, and the bairns of that marriage, and he had not so much over the conquest as was contracted with the pursuer's mother. 3tio, The obligement being a destination to the bairns of the marriage, no annualrent is due till the actual implement; and the pursuer might have been more diligent to have got the contract implemented.
Answered; It is notour, that the pursuer is a bairn of the marriage, and hath been alimented as such by the defender. 2do, The defender is heir served, and so liable to the father's obligements, though his estate should not answer the burden. 3tio, The obligement to employ 30,000 merks upon land, imports, that the money was not to be unprofitable; and as it would have paid annualrent to the wife during her liferent, so it ought to do to the pursuer.
Replied; The pursuer's right is a kind of succession, and differs from such an obligement in favour of a stranger; and being precisely to employ the 30,000 merks, he doing that fulfils it in terminis.
The Lords repelled the first and second allegeances, in respect of the replies, and allowed the parties a further hearing as to the third, concerning the annualrent of the money since the father's death. Thereafter, an amicable settlement was recommended to the parties.
Fol. Dic. v. 2. p. 278. Harcarse, (Contracts of Marriage.) No 395. p. 104.
