Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. VI.
Whether Heirs of a Marriage can transmit to their Representatives their jus crediti without service?
Gibson v. Arbuthnot
Date: 4 February 1726 Case No. No 37.
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By contract of marriage, the husband became bound “to employ the sum therein named, and the conquest during the marriage, to himself and spouse in liferent, and to him, for the use and behoof of the children to be procreated betwixt them, in fee; which failing, &c.” There being but one daughter of the marriage, who deceased before her father, after conveying her interest as only child of the marriage, a competition arose about the conquest, betwixt her disponee and her son, who took out brieves to serve himself heir of provision in his grandfather's contract of marriage. The Lords found, That the husband being obliged to provide the conquest to himself, for the use and behoof of the children of the marriage in fee, he became thereby a trustee for behoof of his children; and that after dissolution of the marriage action was competent to his daughter's assignee; and therefore found there was no place for her son to serve heir of provision to his grandfather.
Fol. Dic. v. 4. p. 279. Home.
*** This case is No 162. p. 11481. voce Presumption.
