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.
Liberton and Edminston, v. The Countess of Rothes, &c
Date: 9 February 1700 Case No. No 87.
Competent to creditors to expiscate the solvency of a father granting provisions to his children.
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In the competition betwixt James Liberton of Leiden, and Janet Edminston Ms spouse, against the Countess of Rothes, and other creditors of Edminston of Carden, the Lords found that old Carden having disponed his estate to his eldest, son, with the burden of sundry provisions to his other children, and particularly to the said Janet Edminston, the son's creditors could not quarrel the same, nor seek preference thereto, but that the father's creditors might be heard against these provisions, either as latent or undelivered, or that parents cannot burden their estates with sums of money payable to their children till their lawful creditors be satisfied; at least, that they had a considerable visible estate, sufficient to pay all, at the time of their settling these provisions, as was found betwixt the Duke of Queensberry and the Children of Mousewell, (p. 961.); and that the father's condition might be inquired into, whether insolvent at that time, yea or not; tho it is very hard to put creditors upon these indagations; and wherever the debtor's estate is dubious, it is juster that the children should be losers, than that the creditors should want. See the 30th June 1675, Clerk contra Stuart, marked both by Stair and Dirleton, with observations on the decision, No 46. p. 917. The creditors urged the late decision, Napier of Tayock contra Falside. Fountainhall, v. 1. p. 729. voce Provision to Heirs and Children.
