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Scottish Court of Session Decisions >>
Craik v Craik. [1735] Mor 4313 (29 January 1735)
URL: http://www.bailii.org/scot/cases/ScotCS/1735/Mor1104313-008.html Cite as:
[1735] Mor 4313
Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. II.
Prohibitions, - to alter a Destination, - to uplift without consent.
Craik v. Craik
Date: 29 January 1735 Case No. No 8.
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William Craik having one son, Adam, and one daughter, Jean, made a settlement of his estate in favour of Adam, and the heirs male of his body, &c. which failing, to his daughter Jean, &c. which failing, to the heirs female of his son's body, &c. with this provision, that none of the heirs of entail should have liberty to disappoint the course of succession by contracting debts unnecessarily, or by making deeds or conveyances in prejudice thereof. After the father's death, Adam, the son, in his marriage contract, made a new settlement of the estate, wherein he preferred the heirs female of the marriage to his sister Jean, and her heirs; and he also dying without issue male, in a competition betwixt his eldest daughter, Mary, who claimed the estate upon this settlement, and her aunt Jean, who claimed it upon the former, the Lords found, that Adam Craik could not, in his contract of marriage, settle the succession in favour of his own daughters, preferably to his sister. Mary here urged the onerosity of the contract of marriage, the obvious answer to which was, that however onerous with regard to the husband and wife, it is merely gratuitous with regard to the heirs of the marriage, especially with regard to remote substitutes, such as Mary, who is postponed not only to the heirs male of the marriage, but to the heirs male of any other marriage.—See Appendix.
