Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XIII.
What understood to be sufficient implement.
Gordon of Auchline v. Christian Barbara Gordons
Date: 11 December 1731 Case No. No 112.
A person who had settled his estate on the heirs of a marriage by contract, found not entitled to make a tailzie of the estate consistent with the contract.
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Gordon of Auchline, who stood bound in his contract of marriage to resign his estate in favour of himself, and the issue of the marriage, did, thereafter, execute a tailzie with clauses prohibitive and irritant to himself in liferent, and, after his decease, to Alexander Gordon, his eldest son, heir of the marriage, also in liferent, and to the heirs-male lawfully to be procreated of his body; whom failing, to James Gordon, his second son, and the heirs-male of his body; whom failing, to the heirs-male of the tailzier's body of any other marriage, whom failing, to the heirs-female of his body, &c. James Gordon, now of Auchline, in the right of the heir of the marriage, raised a reduction of this tailzie, insisting, that no father, who stands bound, by contract of marriage, to resign his estate in favour of himself and the issue of the marriage, can tailzie that estate, with clauses prohibitive and irritant, in regard he is under obligations to make the estate not only to descend to the issue, but that it shall descend tanquam optimum maximum, and consequently not under irritant and resolutive clauses, by which the issue would not be fiars, but liferenters of that estate. In the second place, That abstracting from the general point, this particular entail was an irrational deed, and fraudulent, tending to evacuate the destination in favour of the heir of the marriage. Upon this head it was observed, that the estate was small, burdened moreover with a liferent and considerable debts; 2dly, That the heir was not impowered to charge the estate with a shilling to redeem him from slavery; 3dly, That the heir had no power to provide wife or children; 4thly, That the heir-male of the maraiage was cut out and made a liferenter, and the heirs-female of the marriage postponed, even to the youngest daughter of the maker of the tailzie, contrary to the provision of the contract, which is in favour of the heirs of the marriage. The Lords did not determine the general point, but with respect to the particular qualifications insisted on, they found, that this tailzie was not consistent with the provisions in the contract of marriage, and therefore reduced the tailzie. See Appendix.
