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Scottish Court of Session Decisions >>
Fotheringham v Fotheringham of Pourie. [1734] Mor 12929 (5 December 1734)
URL: http://www.bailii.org/scot/cases/ScotCS/1734/Mor3012929-071.html Cite as:
[1734] Mor 12929
Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. IX.
Import of an Obligation to Provide, in a Contract of Marriage, with regard to the Father.
Fotheringham v. Fotheringham of Pourie
Date: 5 December 1734 Case No. No 71.
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When a father, in implement of his contract of marriage, does de facto employ the covenanted sum, and takes the same payable to himself, and after his decease to the heirs or children of the marriage, the sum, as his property, may be affected by his creditors; but then, as the obligation in the contract imports not barely that he is once to settle the sum, but to make it truly effectual to the heirs or children, which implies a prohibition to contract debt, so as to disappoint the heirs and children of their succession; this prohibition is sufficient to bar gratuitous creditors, though not onerous creditors, which nothing can do unless an irritant clause be added. Upon this footing it was found, that if the subject be carried away by onerous creditors, an action lies against the father and his cautioner at the instance of his children, for re-employing the sum, or making good the same to them after his decease. See Appendix.
Fol. Dic. v. 2. p. 283.
*** The same was found in the case of M'Intosh in 1717, No 36. p. 12881. And if a father, as being fiar, do any deed in prejudice of such an obligation, the heir of the marriage may charge him to purge the same, or to re-employ the like sum, see Fraser against Fraser in 1677, No 23. p. 12859.
