Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XIII.
What understood to be sufficient implement.
James Strang v. Matthew Strang
Date: 27 July 1751 Case No. No 118.
A tailzie, containing unreasonable conditions, in defraud of the tailzier's contract of marriage, reduced.
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James Strang, portioner of Meikle Earnock, being bound by his contract of marriage to provide his said lands, and all others he should acquire, to the heirs and bairns of the marriage, tailzied the same to his heirs-male, with other sub stitutions.
James Strang, the tailzier's eldest surviving son, insisted in a reduction of the tailzie, as in defraud of the obligation in the contract of marriage, and highly irrational, in as far as his father became bound to give his estate to heirs whatsoever, and had only given it to him and his heirs-male; and had, by substitution, preferred his own daughter to the daughter of his son; he had prohibited the heirs to contract debt; and had not allowed them to provide wife or children; and obliged them to use the name of Strang, and design themselves portioner of Meikle Earnock; and yet he had not prohibited them to sell the estate: An heir is laid under an irritancy if he shall marry a woman by whom he has had a natural child; which is no irritancy upon an heiress: This estate extends only to L. 537 Scots yearly, burdened with L. 8000 of debt.
Answered; That the estate was provided to the heirs and bairns of the marriage, which was to be understood equally amongst them; so that the eldest son having got the whole by the tailzie, could not quarrel it: A father obliged to give his estate to his eldest son, is not disabled from giving it him under a tailzie; nor is the proprietor of a small estate disabled from tailzieing it, more than if it were a large one; where there was so much debt, it was reasonable to prohibit from contracting more; and, at the same time, to allow the heir to sell in case of necessity.
Replied; A provision of a land estate, to the heirs and bairns of a marriage, gives the right to the heir.
The Lords sustained the reasons of reduction.
Act. R. Craigie & Boswell.Alt. Millar.Clerk, Pringle.
Fol. Dic. v. 4. p. 189. D. Falconer, v. 2. No 224. p. 269.
