Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XI.
The Onerosity of Provisions in Favour of Children.
Erskines v. Carnegies & Smith
Date: 23 December 1679 Case No. No 82.
A wife was provided to the liferent of her husband's whole means. She restricted herself to a half, and renounced the remainder in favour of her, children. The children were postponed to creditors whose debts were before the contract of marriage. There was no other fund of payment during the relict's life.
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John Erskine having adjudged certain tenements in Edinburgh, upon a debt due by Alexander Carnegie, pursues Janet Smith, relict of the said Alexander, as possessor of the maills and duties. Compearance was made for James and Elizabeth Carnegies, who craved preference for the half of the rents of these tenements, because, by contract of marriage betwixt the said Alexander and the said Janet Smith, she was provided to the liferent of the finds whole tenements, but in case there were children surviving, she restricts herself to the one half, and renounced the same in favours of the children;' so they being the only children of that marriage, have right to that half.—The pursuer answered, That this was a fraudulent contrivance, to prefer children to creditors, preceding the contract, which, if sustained, would be of pernicious consequence; for, though a mother may restrict in favours of children, where there remains to the father a sufficient free estate to satisfy his debt; but here the pursuer was an anterior creditor, and the defunct's whole means and estate was liferented by his. wife, his tenements being worth 1800 merks, or 1000l.; and the tocher also liferented by the wife, being 5000 merks; so that the liferent was exorbitant, and the constituent had nothing unliferented.—It was replied, That beside the tocher, he had 1000l. to be paid at his good father's death, with the property houses and the tocher.
The Lords found the jointure was exorbitant, and restriction fraudulent, and therefore preferred the creditor for his annualrent during the liferenter's life, and the tocher thereafter.
