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Kennedy and Ferguson v Martin. [1688] Mor 12897 (00 June 1688)
URL: http://www.bailii.org/scot/cases/ScotCS/1688/Mor3012897-051.html Cite as:
[1688] Mor 12897
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?
Kennedy and Ferguson v. Martin
1688.
June. Case No. No 51.
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A Wife being provided to the liferent of lands, with a provision, that, in case there shall be an heir-male of the marriage surviving his father, she should be so much restricted in favour of the heir-male during his life; and such an heir-male having survived his father, the father's Creditors sought to affect the superplus of the relict's liferent, over and above the restricted quantity, during the heir-male's lifetime, as being a provision of aliment to him.
Alleged for the Heir male; That it could not be claimed by his father's Creditors, seeing it proceeded from his mother.
Answered; If such a preparative were allowed, parents might easily disappoint their Creditors, by providing their wives largely, with an obligement upon them to restrict in favour of children.
The Lords inclined to think, that if the wife's jointure was anywise exorbitant, the excess provided for the children would be liable to the father's Creditors; but the point was not voted.
Harcarse, (Contracts of Marriage.) No 394. p. 103.
