Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XI.
Obligation to provide the conquest to the issue of a marriage. Import of this obligation with regard to the father.
Murrays v. Murrays
Date: 19 June 1677 Case No. No 81.
Found in conformity with Robson against Robson, No 78. p. 12943. Here the question was with children of the second marriage, as heirs of conquest.
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Umquhile Thomas Murray, Bailie of Edinburgh, by his first contract of marriage, provided a sum to the bairns of the marriage, with a clause of conquest of lands and tacks acquired during the marriage. And, by his contract of marriage with his second wife, he provides the heirs of that marriage to a sum, and to the conquest during that marriage, of lands, annualrents, and sums of money, and there is expressed goods and gear, but these words are crossed, yet legible. The defunct had a son and two daughters of the first marriage. The two daughters were married, and forisfamiliated in his own time. The son of the first marriage hath some heritage in land, which is said to be 700 merks yearly. He has a son and two daughters of the second marriage, and he grants a bond of provision in his liege poustie of 7000 merks to his son of the first marriage, and 6000 merks to each of the three bairns of the second marriage. After all he makes a testament, and burdens his executors with the said bonds of provision, and leaves all his six children of both marriages his universal legatars. Whereupon the rearises a competition, wherein it was alleged for the children of the second marriage, That they were creditors by the clause of conquest, being provided to all goods and gear conquest during the marriage with their mother, which clause could not be evacuated by any voluntary or gratuitous deed in favour of the bairns of the first marriage; and therefore the bond of provision, in so far as concerns the eldest son, could not affect the means conquest during the second marriage, much less could the universal legacy bring in all the children of the first marriage equally. It was answered, That a clause of conquest in favour of children is not a debt, but a provision of succession, whereby the children represent their father, and so cannot quarrel any provision granted by him, who remained dominus bonorum during his life, and so could dispose thereof what way he pleased, not only for onerous causes, but he might gift to strangers, and exercise charity. So that such clauses can only be understood as clauses of conquest of lands, which do reach no lands but such as were conquest, and remained undisposed of at the defunct's death; for it cannot be thought, that by such clauses any persons would interdict themselves, or restrain their freedom; and it is not controverted but the father might borrow sums, or dispone his goods, or assign his bonds for sums of money, though he should waste or give away these sums at his pleasure; much more may he provide children of a former marriage with competent provisions; for which there is a natural obligation, or do any other rational act, as the providing of a subsequent wife, as was found in the Competition betwixt the Wife and Children of Thomas Littlejohn, No 79. p. 12943. It was answered, That such clauses of conquest are not simply provisions of succession, but as tailzies or provisional succession constitute the successors creditors, as to the terms of the provision against the heirs of line or executors, so must this provision, which is most ordinary among merchants and inferior people, and cannot be interpreted so as to be elusory; and therefore all acts importing fraud, or any disappointment in such clauses, are null, as this universal legacy, which brings in all the bairns of the first marriage, who had no clause of conquest, and who were provided, the son having a land inheritance, and the daughters having been tochered and forisfamiliated, equally with the children of the second marriage, who have an express clause of conquest in their favour.
The Lords found, That the special provision in favour of both marriages should be first satisfied out of the father's executry, in order, as the provisions were in the several contracts. And as to the superplus of the executry, they found, That the universal legacy did not prejudge the children of the second marriage of the clause of conquest, and therefore preferred them as to what sums were conquest in their mother's time; and as to the provision for the eldest son, the Lords ordained inquiry to be made, whether that part of the executry conquest in the first wife's time, would be sufficient to pay that son his part, which would make it effectual, and what heritage the son would succeed to, that the Lords might consider whether it was a rational provision for the father to add 7000 merks to his son, who had a land inheritance, which they would accordingly sustain, as they did in the case of Littlejohn; and as to the remainder of the executry conquest in the first or second wife's time, the Lords found the universal legacy effectual to bring in all the six children equally.
