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.
John Cairns v. Edward Cairns of Tor
Date: 31 January 1705 Case No. No 27.
Found in conformity to Panton against Irvine, No 24. p. 12860.
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John, as grandchild to the said Edward, by David, his eldest son, now deceased, pursues the said Edward, on this ground, That, by his contract of marriage in 1647, he was obliged to infeft his wife in liferent, and the heirs whatsoever of the marriage in fee, in the lands of Tor, &c. and to free them of all incumbrances; and he being the heir of the marriage, by progress, and his grandfather, by importunity and old age, having granted several gratuitous rights to his prejudice, therefore he pursues him to implement the said contract, and to resign, and take the rights to him in fee. Alleged, Though the pursuer be his grandchild by his eldest son, and so he who will be the heir of the marriage, and have right to that obligement, yet he cannot be heir till his grandfather die; and the Lords have often refused process on such clauses, at children's instance, against parents, during their lifetime, it being contra reverentiam parentibus debitam; 2do, The clause is only a mere destination of succession, and he is still fiar, and may contract debt, and grant rights for just, necessary, or rational causes, from which he cannot be tied up. Answered, If process were refused, then such provisions would be wholly insignificant and useless, and might be defrauded; and it is enough if he be heir designative, though not served and retoured; and a father was in terminis decerned to secure a sum, provided in a contract of marriage, 13th February 1677, Fraser against Fraser, No 23. p. 12859.; and, lately, in a process pursued by Thomas Wylie's children against him, upon their mother's contract of marriage, the Lords found him obliged to implement the obligements, but gave him the power of distributing and dividing it amongst his bairns, as he thought they best deserved. The Lords sustained process, at the grandchild's instance, to cause his grandfather resign and infeft, in the precise terms of his obligement in the contract of marriage; but would not oblige him to take it nominatim to the grandchild, but only in general terms, to the heirs of that marriage; so that if this grandchild should die before his grandfather, (as his father had done) the nearest of kin would not be put to require the same to be re-implemented to him, but this would accresce and serve for all.
Fol. Dic. v. 2. p. 278. Fountainhall, v. 2. p. 264.
