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Scottish Court of Session Decisions >>
Campbell v Duncan. [1732] Mor 12885 (3 February 1732)
URL: http://www.bailii.org/scot/cases/ScotCS/1732/Mor3012885-038.html Cite as:
[1732] Mor 12885
Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. VI.
Whether Heirs of a Marriage can transmit to their Representatives their jus crediti without service?
Campbell v. Duncan
Date: 3 February 1732 Case No. No 38.
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In a second contract of marriage, the husband and his heirs became bound, at the term of Whitsunday after the marriage, to employ a certain sum to himself and wife in conjunct-fee and liferent, and to the heirs and children of the marriage in fee. There was but one child of the marriage, a daughter, who, after assigning the provision to her husband, died, without making up any titles. In a pursuit at the husband's instance against the granter's representatives for payment, it was admitted for him, That had the father lent out the covenanted sum in terms of the contract, a service as heir of provision would have been necessary; but while the obligation stood unimplemented, the heirs and bairns were creditors. It is true, when this action is pursued against the father, it can go no further than to oblige him to implement, that is, to lay out the money in terms of the contract; but when the action is laid against his representatives, it resolves into an action for payment, because the father's fee dies with him, whereby the heirs and bairns of the marriage fall into the full right. The Lords sustained process for payment, and found no necessity for a service. See Appendix.
