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.
David Reid v. Grizel Whitsom, and Rutherfords
Date: 1 July 1703 Case No. No 88.
A wife brought a tocher of 2000 merks She was pro vided to the liferent of 300 merks a year, 100 of which, in case of children, to be renounced in their favour. The entire liferent being no more than reasonable; the provision out of it to the children sustained against anterior creditors.
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By contract of marriage betwixt, the said Grizel and John Rutherford, she is provided to a liferent annuity of 300 merks out of his lands, but with this quality, that in case there were children of the marriage, she, per vorba de præsenti, renounced 100 merks of the said annuity in their favour allenarly, secluding all others from the benefit thereof. Rutherford dying, Reid his creditor adjudges his lands; and, in a competition for the mails and duties betwixt him and the said Grizel, the relict, and her children, it came to be debated, whether her renunciation of the 100 merks accresced to the adjudger, or to her bairns. It was contended for Reid, he was preferable, because the 100 merks was provided to children then not born, but liberis nascituris, and so only belongs to them, by way of destination; and as substitutes in a bond, who are reputed as heirs, and liable in valorem to their father's creditors, as was decided 23d December 1679, Erskine contra Carnegies, (No 82. p 968.) 2dly, It was a fraudulent contrivance to prefer the children to their father's anterior creditors. Answered for the children, That the clause was plainly conceived in their favour, with an express seclusion of all others from the benefit thereof, 2dly, It is not a renunciation in favour of the heirs of the marriage, (for that would have accresced to the creditors, and been affectable by them), but of the bairns; and if it had stood still in her person, her husband's creditors could have had no claim to it, and no more can they in this case: And the decision cited has many distinguishing circumstances; for there her jointure was exorbitant, far above what her husband could give; whereas Grizel's annuity is very moderate, being but 300 merks, and she brought 2000 merks of tocher with her; and in such a case the Lords found the benefit of a renunciation only accresced to the children, 16th November 1665, Wat contra Russel, Stair, v. 1. p. 3c 8. voce Personal and Transmissible; neither is there any fraud, but a just, equal, and open, bargain, and nowise flowing from their father, and so not subject to his debt. The Lords found this provision so expressly exclusive, that they preferred the children to the creditors. The like was found lately between the Laird of Kinfawns and his father's creditor, p. 489 & 970.
Fol. Dic. v. 1. p. 72. Fountainhall, v. 2. p. 185.
