The heir collating his heritage, has a title to a share of the childrens part.
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Umquhile Thomas Murray, bailie of Edinburgh, having children of two marriages, did marry all the children of the first marriage, and gave them tochers, in full satisfaction of their portions-natural, and bairns part; he did also give bonds of provision to the bairns of the second marriage, wherein the sums were all equal, bearing ‘to be for their better provision:’ And at last, by his testament, has appointed, ‘ That after payment of his debts, and bonds of provision to his bairns, that all his bairns, of the first and second marriage, should have equal share of his goods and gear;’ and, in an account amongst the bairns, those of the second marriage craved their bonds of provision as debt, which affect the whole executry, before any division; and that what were free, over and above the bonds of provision and debts, should be divided in two, the one half falling to them as bairns un-forisfamiliate, and the other half being as dead's part, by his universal legacy, should be divided equally amongst all his bairns of the first and second marriage. It was alleged for the bairns of the first marriage, that the bairns of the second marriage could not both have their bonds of provision, and also their bairns part, unless their father, by their bonds of provision, had declared, ‘that these bonds should be but prejudice of their bairns part,’ which he doth not. But, on the contrary, the bonds bear, ‘To be for their better provision;’ and such bonds neither bearing in satisfaction of their portion-natural, nor by and attour the same, the intent thereof has ever been sustained, that the father would secure these bairns in these provisions in omnem eventum, but not that he should give them their provisions and bairns part also, and thereby restrict his own power of legating, which cannot reach the bairns part; so that the children, so provided, may either hold to their bonds of provision as creditors, or may reject them, and take their share of the bairns part, if it be better; in which case, the executry will be the greater, and the wife will have the larger share, and the dead's part, disposed of by legacies, will be the larger. Likeas, by the ancient Roman law, which our customs follow, all tochers, and other donations to children, were accounted as parts of their legitim, and if they had received the same, they behoved to confer and bring it back to the heritage; and if it were resting, it behoved to be imputed a part of their legitim, and that such collations were not to the children only, to make them equal in their legitim, but to their whole succession; and therefore the Lords, in the case of the Lady Dunbeath, 18th February 1663, No 5. p. 2367. where Dunbeath having one daughter married and tochered, but not in satisfaction of her bairns part, she was admitted to the third of the executry as her bairns part, she always collating her tocher, whereof a third accresced to the wife, and a third to the dead's part; and therefore such collations are not only to equalize the bairns part, their being no bairns in that family but one. It was answered, That bonds of provision to children, made and delivered in liege poustie, have all the effects of other debts, and come off the executry before, any division, and yet do not exclude the bairns from their bairns parts of what is free, debts deducted, and in that they differ from bonds granted on death-bed, which affect only the dead's part as legacies. It is true, that when the bairns part comes to be divided, or even the dead's part, if not exhausted by legacies, that the parity of natural affection hath made both the Roman law and ours to equalize the children, so that as much must be laid by to the rest as to make them equal to the bonds of provision.; but then, what is over, is equally divided amongst them all, in case some of the bairns have greater provisions than others, which takes no place here, because all the bonds of provision are equal. It is true, that it there be but one bairn, the bond of provision, or tocher thereof, must be collated or imputed, whereby the wife's part, and dead's part, would be increased,because in that case there are no more children to whom it might accresce; and therefore it accresces to the whole executry; but if there were more children, it would accresce to them.
The Lords found, that the bonds of provision to the children of the second marriage, not bearing in satisfaction of their bairns part, were to be taken off the whole executry, before the division, and that the half of the free gear, after deduction of these and other debts did belong to the bairns of the second marriage only, and that the bairns of the first marriage were excluded by their contracts of marriage; but found that the other half, by the father's legacy, belongs to bairns of both marriages equally.
In this process the heir offered to confer his heritage, and craved a share in the bairns part, because the only reason the heir is excluded to share in mobilibus, is because he has the sole succession and heritable rights, which is ordinarily better than his share in the moveables; but if he will collate his heritage, he is always admitted to share in the moveables.
The Lords admitted the heir collating the heritage, and all to be equal sharers in the whole bairns part, with the succession of the heritage.
