Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VII.
The manner of estimating Liferents in the Computation of a separate Estate.
The Creditors of Mouswell v. the Children of Mouswell
Date: 11 December 1679 Case No. No 60.
The funds of a father, who has granted liferent annuities to his children, became thereby secundum eventum deficient; the liferents were calculated according to the probable duration of the lives at the time of granting, which did not exhaust the funds; so the provisions were sustained.
Click here to view a pdf copy of this documet : PDF Copy
The Laird of Mouswell, in his son's contract of marriage, dispones to him his estate, reserving his own liferent of a part, and likewise reserving power to him to take on and burden the estate with any sum he pleased, not exceeding 18,000 merks, for provision of his bairns, and other lawful affairs, and with a clause of warrandice from his own fact and deed allenarly; which reservations were to be insert in his son's infeftment; thereafter he grants bonds to his bairns, with a precept of sasine, whereupon they were infeft in the land; but thereafter his creditors pursued his third son, as successor to the eldest, and thereupon obtained decreets, and apprised the estate for the father's debts, anterior to the father's exercising the faculty, by giving bonds of provision to his children, and there upon the creditors pursue reduction of the bairns infeftment and provisions, as being in prejudice of them, anterior lawful creditors.——In which the Lords found, That if the father had a sufficient estate to pay all his debt, and the bairns portions, when he granted them their bonds, that the same could not be annulled as fraudulent. And now by the probation it appeared that the father had an estate of L. 2400 yearly, and found them estimate at 16 years purchase, a wood worth 10,000 merks, and 5000 merks resting of his son's tocher; and that the father's. wife was provided to 1000 merks yearly, and his son's wife to 1200; and that the father and son did shortly thereafter die; that the one was within 40, and the other within 20 years at that time; and that both have enjoyed their liferent these 24 years, and excluded the creditors; and that the father, at the time of exercising the faculty, had 18,000 merks of debt.——The Lords would not sustain the burden of the liferents secundum eventum, but as they were worth when the faculty was exercised, and estimate the liferent of the elder to five, and the liferent of the younger to seven years purchase; by which account the father had free above L. 30,000 when he exercised the faculty; and therefore the Lords sustained the bairns provisions.—It was now further alleged by the creditors, That the faculty reserved by the father was exhausted, because it is proven, that he was in L. 18,000 of debt when he exercised it, and therefore could not burden the son's fee with any farther, especially seeing in the contract he is obliged to warrant the son's right from his own deed, and his anterior debts being his deeds affecting his estate by his creditors apprisers, the son or his heirs would have recourse against the father upon the warrandice, for relieving the estate of anterior debts, and much more might the son, his heirs or assignees, by these apprisings, exclude any further burden by the childrens provision; likeas the clause bears, for providing of his childrens provisions, or his other lawful affairs, and there could be no more lawful affairs than the paying of his anterior debts.—It was answered for the children, That they opponed the clause, bearing a power to the father to take on debts and burden, which could not be exhausted by the father's debts already taken on; and as to the general clause of warrandice, it is, as all other clauses ought to be interpreted, secundum subjectum et materiam, and can import no more than the ordinary explication of such clauses, That the father had not, and should not make any other right or disposition of the estate; but if such clauses were extended to prior personal debts, when contained in gratuitous dispositions, by which nothing is intended but to give the right talis qualis, it would invert the nature of donations, and rum fathers, who ordinary dispone their estates to their apparent heirs in their contract reserving only a liferent of some part; which liferent, if it might be so burdened, and evacuate by their anterior, debts, they by their gratuitous disposition, might be made to starve, and no person contracting with them can be secured, but their anterior debts will affect their estate, notwithstanding of the disposition to the apparent heir, yea, and make him liable personally as successor titulo lucrativo. It is true, that where the son gets but a portion for his subsistance, such clauses may be extended; but not where the estate is disponed to the apparent heir; unless there were a clause obliging the father to purge the estate of anterior debts, or that the son accepted it with the burden of such debts, which would import him to be free of the rest.—It was replied, That contracts of marriage being of the greatest trust, the wives and their relations contracting and bringing in portions, they do always look upon the estate as free, except in so far as it is expressly burdened; and if they might be excluded by all anterior debts, these might reach the value of the estate; and whatever might be said of donations, which are simply ex pura liberalitate, yet that cannot be extended to contracts of marriage, which are always interpreted onerous: Nor can clauses of warrandice be otherwise interpreted, even in donations, than according to their tenor, and in dubio ought to be interpreted contra proferentem, seeing that the father might have said that they were only against future deeds.—The children duplied, That in such contracts, not so much the words, as the meaning of the parties are to be regarded; nor can it be conjectured, that any father would dispone his estate for so small a portion, and reserve a liferent, which his prior debt would affect, if that case had been proposed; but on the contrary, the wife and her friends could not be ignorant that the law burdened his estate with his anterior debt, as much as any express clause could, and therefore ought to have secured themselves by an obligement to purge the debt; but in this case the clause bearing expressly, To take on debt and to burden the estate, therefore it can never be exhausted with debts already taken on; neither is there here any pretence of fraud, but a very deliberate right granted to the son, twice as much as all the burdens; and the faculty was so tenderly used, that the father gave only L. 6000 to his numerous children, and provided not the share of the deceasing to accresce to the surviving, but to return to the heir; so that several of the bairns being now dead, there remains but 5000 merks of the 18,000 merks contained in the faculty, which is but a mean aliment to the children.
The Lords found this clause, as it was conceived, could not be exhausted by the father's anterior debts, notwithstanding of the clause of warrandice aforesaid. See Warrandice. See Provisions to Heirs and Children.
Fol. Dic. v. 1. p. 69. Stair, v. 2. p. 720.
*** See This case from Fountainhall, MS. voce Faculty.
