Scottish Court of Session Decisions

Subject_1 PROVISION to HEIRS and CHILDREN.
Subject_2 SECT. VII.

Obligation by one in his contract of marriage, to provide certain sums or subjects to the issue of the marriage, how far effectual in competition with creditors?

The Creditors of the deceast George Marshall, Merchant in Edinburgh,
v.
His Children of the First and Second Marriage

Date: 23 December 1709
Case No. No 56.

Creditors preferred to children who had adjudged on their bonds of provision, dated before the debts were contracted.

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In a competition betwixt the Creditors of George Marshall and his Children, those of the first marriage having adjudged upon bonds of provision granted to them by their father, and the Child of the second marriage having adjudged for the provision in her mother's contract of marriage; both craved to be ranked pari passu with the creditors.

Alleged for the Creditors; The Children cannot be brought in equally with them; because, contracts of marriage and bonds of provision are but the father's destinations in favours of their Children, whereupon no diligence could be used against the father in his lifetime, as was decided, February 10th 1688, in the case of the Creditors and Children of William Robertson, No 36. p. 4929. And seeing Children can have only a share of their parents' means, they can pretend to nothing till his debts be satisfied; that only being ours quod deductis debitis est nostrum.

Answered for the Children; 1mo, Those of the first marriage contended, that they were not only Creditors to their father jure naturæ, whereby parents are obliged to provide for their children; but also were onerous creditors to him, in respect of a great tocher he got with their mother, and their bonds were prior to the contracting of the Creditors' debts, and therefore they ought to be preferred, December 11th 1679, Creditors contra Children of Mouswell, No 60. p. 934. 2do, The Child of the second marriage pleaded, That her provision was conceived in her mother's contract of marriage before the date of the Creditors' bonds, which was an onerous, and no latent deed; and the Lord Preston's children of the second marriage were brought in with his creditors according to their diligence.

Replied for the Creditors; The provisions must be considered only with respect to the father's condition at his death, at which time being insolvent and bankrupt, he could do no deed in prejudice of his just and lawful creditors; as is clear from the practick betwixt the Creditors and Children of Robertson, No 36. p. 4929., and that of Inglis contra Boswell, November 14. 1676, No 236. p. 11567. Nor is the Child of the second marriage in any better case than the other Children; because, a contract of marriage doth not take the fee from the father, or hinder him to contract debt, November 21st 1682, The Creditors and Children of Mr Andrew Marjoribanks, No 48. p. 12891.; but is only designed to regulate the succession of the Children of the marriage, with relation to themselves or to children of other marriages.

The Lords preferred onerous Creditors to the Children, in respect the father was fiar, notwithstanding the bonds of provision and contract of marriage.

Fol. Dic. v. 2. p. 281. Forbes, p. 372.

*** See a subsequent branch of this case, as reported by Forbes, and Fountainhall's report, No 9. p. 47., voce Adjudication.