Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due ex pacto.
Mr Alexander Carnegy v. Kinfauns
Date: 12 July 1699 Case No. No 21.
A party, by a reserved faculty in his contract of marriage, is allowed to provide to a second wife in liferent, and the children in fee, a certain sum, without mention of annualrent. Annualrent found due from the dissolution of the second marriage by the husband's death.
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In the contract of marriage between Mr Alexander Carnegy, second son to the Earl of Nothesk, and Anna Blair, heiress of Kinfauns, his father engages for L. 40,000 of patrimony with his son. Kinfauns dispones his estate to his daughter, and the heir-male of the marriage, with this quality, that if Alexander survive and enter into a second marriage, it shall be lawful for him to burden the estate of Kinfauns with 20,000 merks in favours of a second wife, and the heirs of that marriage; which case existed, and the said 20,000 merks being affected by his relict and her son, it was first debated, that the faculty was extinct, never being specifically exerced;—this the Lords repelled 23d June 1698*, and found the entering into a second marriage a sufficient exercise and equipollent. Then Crawfurd of Monorgan, Alexander Peter, the Earl of Northesk, and other creditors of the father's, craved preference to the son, because this being in bonis of their debtor, was both affectable, and actually affected by them, and he could have discharged it in whole or in part; and so being fiar, his son can have it in no other way but as heir to him, and must, eo nomine, be subject to their debts, and they preferred quoad this interest.—Replied, This faculty was never purchased nor acquired by their debtor's means, but was given in contemplation of the L. 40,000 the Earl of Northesk, his father, contracted with him, and though he might accept or repudiate, (which is the nature of every faculty,) yet
* See The case alluded to, between the same parties, Fount. v. 2. p. 5. voce Faculty.
he could not assign it to any stranger, nor apply it to any other use but the specific destination of his second Lady and children, who did not represent him in it; but on his exercising the faculty, it became a debt, and the children of the second marriage creditors for it.——The Lords found it personal, and therefore preferred the children to the creditors; though in most cases creditors are more favourable, and that it might open a door to fraud; but the Lords could not evite the jus quæsitum that seemed here to arise to the son of the second marriage.
Then Kinfauns alleged, That, however the Lords had found him liable for the principal sum, yet it could bear no annualrent, which is only due ex lege vel pacto, neither of which took place here; so that it could never bear annualrent till it were uplifted, or he denounced for payment.—Answered, The nature of the faculty and provision imports annualrent; for 20,000 merks being provided for a wife of a second marriage and her children, that must necessarily be understood to be to her in liferent, and to her son in fee; and a provision even to a bastard daughter was found to bear annualrent, though not mentioned, 25th June 1664, Margaret Inglis contra Inglis, (infra, h. t.)——The Lords found this sum bore annualrent from the first term after the dissolution of the marriage by Kinfaun's death, for the relict's use, even as she entered to her other liferent.
