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Brown v Young and Sir Mark Carss. [1688] Mor 12898 (00 July 1688)
URL: http://www.bailii.org/scot/cases/ScotCS/1688/Mor3012898-052.html Cite as:
[1688] Mor 12898
Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. VII.
Obligation by one in his contract of marriage, to provide certain sums or subjects to the issue of the marriage, how far effectual in competition with creditors?
Brown v. Young and Sir Mark Carss
1688.
July. Case No. No 52.
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A Husband being obliged to employ the tocher on security to his wife in liferent, and to the bairns in fee, he, after her death, assigned it for onerous causes; and the assignee pursuing the cedent's father-in-law for payment;
It was alleged for the defender; That the husband was obliged to implement the contract; and albeit he might uplift the money, there being no obligement upon him to re-employ, or Creditors might affect it, yet it could not be assigned before implement.
Answered; The wife being now dead, and the obligement to employ being but a simple destination quoad bairns, it is frustra to implement.
The Lords decerned the money to be paid to the assignee, upon his finding caution to be liable to the bairns for any pretence or right they had to the money after the father's death.
Harcarse, (Contracts of Marriage.) No 397. p. 104.
