Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XIV.
Father's Power of distributing among his Children, or the Heirs of a Marriage, the Subjects provided to them.
Sandilands v. Sandilands
Date: 4 February 1743 Case No. No 128.
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John Sandilands, by contract of marriage, bound himself, 1mo, To take security for 18,000 merks to himself and wife in conjunct-fee and liferent, and to the children of the marriage in fee; whom failing, to his heirs, &c.; 2do, To secure the estate of Counteswells, a male-fee, holding of the town of Aberdeen, to the heir-male of the marriage; 3tio, That if there should be no sons of the marriage, and in life, the father should pay to one daughter of the marriage, for her provision and patrimony, 8000 merks at her marriage, or age of sixteen, and if two daughters, 10,000 merks, &c. The contract is dated in December 1721. In November 1722, Sandilands executed a bond in favour of a daughter, then procreated of the marriage, for 12,000 merks, one half payable at his own, and the other at his wife's death; providing, 1mo, That if they had other issue of the marriage, the sum be restricted to 6000 merks; 2do, That what sums she should take as heir of line, or executor to her father, should impute in payment of said provision, and she should only claim the surplus from the heir-male. Sandilands died in 1724, leaving a son, who was served heir to him, and infeft in the lands of Counteswells, upon a precept of clare constat, as nearest heir-male, and who died in 1737. The daughter pursued John Sandilands's heir-male, who was served heir-male to her brother for the above provisions. The Lords found, That, by the contract of marriage, she was entitled to a share of 18,000 merks provided by that contract to the issue of the marriage; and found, That the condition on which the sum of 8000 merks is provided to the only daughter of the marriage, viz. in case there are no sons procreated and in life, has not existed, in regard that, at the dissolution of the marriage by the decease of the pursuer's father, there was a son existing; therefore found, That the pursuer had no right to the 8000 merks; but found, That by the bond of provision in November 1722, the pursuer's share of the said sum of 18,000 merks was habilely restricted to 6000 merks. See Appendix.
