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.
Hugh Lyon v. Garden of Laton
Date: 26 July 1715 Case No. No 28.
An adjudication at the instance of an heir of a marriage, found defective as without a service.
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In a process of ranking, of the children of the first and second marriages of Lyon of Balgillo, upon their respective mothers' contracts of marriage, and diligence by adjudication thereon; this question having occurred, whether both their adjudications were null, their decreets of constitution, as heirs of provision, proceeding without a service? and, in general, whether services be needful, in case of sums provided to bairns in a contract of marriage?
It was alleged upon the one side, That, by our law, heirs, or bairns of a marriage ought to be served before they could assign or establish a title for doing diligence, as was found in the case of Drumelzier, the Earl of Tweedale's son of the second marriage, and his brother, the Earl, 21st July 1676, where Drumelzier was bound to serve heir of the marriage cum processu, to found his title, No 21. p. 12587.; 2do, It is certain, that the ordinary and legal way of establishing a right in the person of bairns of a marriage, is by serving them heirs of provision to their father, otherwise non constat they were children of the marriage, or how many survived.
Answered for the other side, That there is a distinction betwixt bairns and heirs of a marriage; for bairns require no legal solemnity, but eo ipso that they are procreated of the marriage, they have the designation of bairns; so that Balgillo's provision being in favour of the bairns of the marriage, it is effectually transmitted to them without any service; but the title of heir is a legal character, competent properly to such only, as have established the same in their persons, by the solemnities required in law. And, as to the decision, it did not meet the present case, seeing the provision, in the contract of marriage, to which it relates, was in favours of the heirs of the marriage; 2do, Our law makes a distinction betwixt lands and sums of money, as to manner of transmission to heirs; for rights of lands being feudal, require charter and sasine to their constitution, and so ought to have the solemnity of a service to transmit them, that it may appear who are the heirs of the investiture; whereas, personal rights being of less importance, require no such solemn deeds to constitute them, and so may be more easily transmitted, when it appears evidentia facti, who are the persons that have right to such provisions. And this was lately found in a case betwixt John Carnagie and Kinfaun's brother, where an adjudication, at John's instance, was sustained, as heir of the marriage designative without any service, to carry a provision, made in his mother's contract of marriage, to the heirs of the marriage. And Dirleton, in the 11th Question, De feudo pecuniæ, et nominum, gives this reason for the distinction, in chyrographario si quidem debito, cum jus personale tantum sit, et ex chyrographo evidens sit substitutum succedere, ut substitutus adeat, nulla alia formula opus est; sed ex chyrographo agendo, vel alio quovis actu, jure suo agnito, adiisse censetur. Sin debitum hyphothecarium sit, non transit ad substitutum, nisi adierit et sasitus sit super præcepto de clare constat, vel ex inquisitione.
Replied, That the case there stated by Dirleton, is wholly different from that in question; for he states it of a debtor granting bond to his creditor for a certain sum v.g. to Sempronius, and after his decease to Titius and his heirs; in which case he indeed makes the above-mentioned distinction between debitum chyrographarium, and hypothecarium; but the reason of that is, because Titius is substituted nominatim; whereas the case in question is of bairns of a marrige, who could not be nominatim by the contract of marriage; and it was wrong to say, that only in real rights there must be aditio, but not in personal ones, which is not asserted in the general by Dirleton or any lawyers; for, supposing the provisions to the original creditor or substitute were to him and his heirs, secluding executors, that right behoved certainly to be established by a service, and yet it is merely personal.
Duplied, That albeit the case mentioned by Dirleton concerns a substitute specially named, yet the question there is concerning the reason that a substitute in a personal right doth succeed to the institute, without any service or solemity to establish the right in his person; whereas, a creditor, by a real right, must be infeft by a precept of clare constat, or retour; his answer is, That a personal right being of less consequence, and requiring fewer solemnities than a real one, the substitute censetur adiisse, by pursuing thereupon, or doing any deed to acknowledge his right; hence it appears, that the foresaid provision in favours of the children of the marriage being personal, there is no necessity to serve them heirs; but they may summarily pursue as bairns of the marriage, for implement of their provisions. This is more easily to be admitted, when it is considered that a father being by his contract of marriage, obliged to employ a sum upon security to him and his wife, and to the heirs of the marriage, process was sustained at the instance of the apparent heir of the marriage against the father, and he decerned to employ in the terms of the obligement, 7th July 1632, Young contra Young, (see Appendix.); 13th February 1677, Frazer contra Frazer, No 23. p. 12589. Now, if the heir designative can pursue his father in his own lifetime, why should he not, after the father's death, effectually pursue his representatives; or if the bairn of the marriage be the person who might be heir, why may he not assign cum effectu his provision to a third party, in order to affect his predecessor's heritage, since the death of the father rather confirms than weakens his son's right?
Triplied, That in that case a service (aditio) were unnecessary and impracticable, as was found in Drummelzier's case, that in all obligements, in favour of heirs of a marrirge, to be done before the father's death, as to employ sums, taking of lands to themselves, and the heirs of the marriage, &c., heirs are here understood such as might be heirs, otherwise the obligement would be elusory. But, in other cases, it has been often found, that an heir of marriage requires a service, as other heirs do.
The Lords found both parties' adjudications defective, in so far as neither of the decreets of constitution proceeds on a service.
Fleming for Hugh Lyon.Alt. Sir Ja. Dalrymple.Clerk, Gibson.
Bruce, v. 1. No 130. p. 171.
