Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

John Marshall and Children of -
v.
Mr John Richardson and the Heir

1686. January.

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A husband, in his contract of marriage, being obliged to secure the conquest during the marriage, to himself and his wife in conjunct fee and liferent, and to the bairns of the marriage equally in fee, took infeftment in the conquest to himself, and the heirs of the marriage, and granted bonds of provision to the younger children; after his decease, the younger children pursued the eldest, to denude of their proportional part of the land conquest. Alleged for the defender, That, notwithstanding of the clause in the contract of marriage, providing the conquest to the bairns equally, the father, by his paternal power, might rationally proportion the same, with some inequality, according to their circumstances and deserving, that children may, by such a check, be kept sub paterno obsequio. Answered, The contract being betwixt small burgesses, whose succession is ordinarily made to run in capita, the provision therein must hinder the father to make an equal division; and, in anno 1678, between Stuart and Stuart, it was found, that a father's provision to the bairns of the marriage, without the word equally, did hinder him to make the younger children's provision less than that of the eldest; multo magis, in this case, was the father bound to an equal division. The Lords recommended to the parties to agree.

Page 46, No. 205.