Trustees in a contract of marriage. Does the office fall by the death of the husband?
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In a contract of marriage, Charles Hill the bridegroom became bound to settle the sum of 3000 merks to himself and Margaret Hunter the bride in conjunct fee and liferent, and to the children of the marriage in fee, and trustees are named in the usual terms as follows, “And lastly, it is agreed, of consent of parties, that all execution necessary shall pass upon the present contract, at the instance of the said James Hunter and Charles Hunter his son, and James Hunter in Inchmichael, or any of them; and failing of them, at the instance of their heirs, or the heirs of any one of them, for seeing the provisions made effectual in favour of the said Margaret Hunter, and the children of the marriage.”
Charles Hill by his industry increased his original stock; and without lending out the 3000 merks in terms of the marriage articles, he made a settlement of his whole means to his wife, and to Agnes Hill his only child, by which both of them got much more than was provided to them in the contract of marriage. Further, he nominated certain persons to be tutors and curators to his daughter during her pupilarity and minority.
The trustees named in the contract of marriage brought a process against the widow, as intromitter with her husband's effects, to lay out the said sum of 3000 merks in terms of the contract. The only point of the cause that deserves to be kept in memory concerns the pursuer's title, which was objected to upon the following ground. In ordinary contracts, each party is left to enforce execution for his own interest. A contract matrimonial is singular; for to leave upon the wife or upon the children the care of their own interest, would be a never failing seed of family discord. To prevent this evil, trustees are named, whose province it is to make effectual the interest of the wife and of the children. From the very nature of this office it can only subsist while the husband is alive; for by the husband's death the widow can prosecute her own interest without the least restraint; and so cart the children with the assistance of the tutors and curators if they be under age, and without any assistance if they be of perfect age. It carried however by a narrow plurality, to sustain the pursuer's title.
