Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Elizabeth Chalmers and Alexander Kennedy v. John Chalmers of Bonnington
Date: 6 July 1699
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Halcraig reported Elizabeth Chalmers, and Mr Alexander Kennedy, minister at Straiton, her husband, against John Chalmers of Bonnington, her father; being a reduction and declarator, that, by the contract of marriage with her mother, all the estate he then had, or should acquire, is provided to the heirs of the marriage; which she was: yet in defraud thereof he had married a second wife, and not only given a liferent provision to her, but also his land-estate to the children of the marriage; and therefore craved the Lords would declare her right of succession after her father's death.
Answered,—This was a preposterous action as well as unnatural; seeing an heir cannot pursue vívente patre, and no action should be sustained at their instance till after their father's death; and these clauses are no more but destinations of succession; and the father being still fiar, he may do any rational deeds notwithstanding of such provisions; as has oft been found, and particularly Dirleton records one, 7th January 1675, Innes against Innes; that where an eldest son of a first marriage had served inhibition on such a contract, and raised reduction thereon, the Lords would not sustain process, because the father was living, and the son neither was nor could be heir while he was alive; but this last reason will not hold where the clause is conceived in favours of the bairns of the marriage.
Some Lords thought the pursuit might be sustained declaratoria juris, not to have effect or execution during the father's life; and that he could do no voluntary gratuitous or fraudulent deed in prejudice of the clause in the first contract. Others remembered Craig's case of the three Aikmans, sisters, and that the parental power is not to be infringed. Therefore it was ordained to be heard in presence.
