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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Kinloch v. Kinloch
1678.
January.
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There is a first contract of marriage, providing a sum to the heirs or bairns of the marriage: there were procreated of that marriage a son and a daughter. The Lords found both the son and the daughter might be served heirs of provision of the marriage; which was thought strange. The parties were Kinloch against Kinloch. It was made a query to the Lords. Sir George Lockhart was of opinion that the legal way was to serve the son, or if there had been more sons, the eldest heir in the whole; and he, then, would have been liable, actione personalis to the rest, for their equal shares and proportions; though, it may be, it was not the meaning nor intention of the parties contractors that they should succeed all alike, or be all of them at the expense of serving heirs. Yet there were two decisions conform to this before, viz. 17th February 1663, Hay against Morison; and 10th July 1677, Carnegie and Smith and Mr Thomas Baird.
