Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XII.
The onerosity of Provisions made in contracts of marriage.
The Lady Auchinvole and Her Daughter, v. Her Step-Daughter
Date: 6 July 1715 Case No. No 97.
In a ranking of creditors, the children of the first and second marriage of the common debtor, provided in sums in the contracts of marriage of their respective mothers, were ranked pari passu and proportionally.
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In the competition betwixt these parties in the ranking of Auchinvole his creditors, for preference upon his estate, for the several provisions contained in his first and second contracts of marriage; the Lords gave a decision on the 12th November last, which stands marked in that Session's decisions:* But there being also in that interlocutor a remit to the ordinary to hear parties, how far the provisions to the daughter of the second marriage could burden the heir of the first, or if the provisions in favours of the heirs of the first and second marrige ought equally and proportionally to affect, and be paid out of the defunct's estate. At reporting——
* Bruce, No 4. p. 5. voce Husband and Wife.
It was alleged for the relict, That she having brought 15,000 merks of tocher, and the husband having contracted 5000 more, and she provided to the liferent of the whole, she ought to be preferred for the same, she being, with respect to it, an onerous creditor, and therefore preferable to the daughter of the first marriage, who is heir of provision to her father; especially since the husband had de facto received her tocher, as appeared by a declaration under his hand, that he had got payment. And for the same reason she contended, that she, as mother and assignee by the daughter of the second marriage, might be preferred for the fee of the 20,000 merks; at least ought to come in pari passu with the daughter of the first marriage.
Answered for the heir of provision: That she did not dispute the relict's preference as to her liferent, but denies, that by her contract of marriage, her husband is obliged for the liferent of the 20,000 merks, but only for 5000. And as to the 15,000, viz. her own portion, the husband was never debtor in the liferent of it, unless he had uplifted the money, which does not appear; for, as to the above mentioned declaration, it being a voluntary deed of the husband in favours of his wife, and impetrate without any just and real cause, it can never be probative against the daughter of the first marriage, an anterior lawful creditor by the provisions of her father's and mother's first contract of marriage. And therefore neither was the defunct so much as debtor in the provision to the child of the second marriage farther than the 5000 merks which he contracted. For the 15,000 was heritably secured on the estate of Erskine, and no instruction, as said is, that it was uplifted by the defunct: And therefore the utmost that can be pretended for the daughter of the second marriage, is to come in equally and proportionally with the daughter of the first for 5000. Nay, though it could be proven that the 15,000 merks was uplifted by the defunct, yet the daughter of the second marriage could plead no preference to the provisions of the daughters of the first : But, on the contrary, the preference is to the first contract; for albeit such contracts do not preclude a man from doing rational deeds, and that a second contract is a rational deed, yet the reasonableness of the provisions is not to be considered with respect to the tocher that comes by the second wife, when the question is betwixt the heirs of the second and first marriage; but with respect to the father's estate towards the fulfilling the first provisions; for otherwise there could be no security by a first contract of marriage, when the parties could not possibly know what provisions the husband might make in another marriage.
Replied for the relict and her daughter: That the declaration above-mentioned, was a sufficient instruction that the husband had received the portion : And so the Lords found in another branch of the same ranking, betwixt the Laird of Ferguslee and the relict; wherein also he made the same exception, and was overruled by the Lords upon this reason, That the husband having got the bonds into his hands, and they now nowhere appearing, and having given a declaration that he got payment, it was a sufficient exoneration and instruction of payment even to the debtor.—And as to what was pleaded against the daughter of the second marriage her preference, Replied, That notwithstanding of provisions in favours of the children by the first contract, the father may (as was owned by the other side) do rational deeds, even in prejudice of the children's provisions by that first contract. Now, there could not be a more rational, nay onerous deed, than when he got 15,000 merks of portion with a Lady, to provide 5000 of his own to be added thereto for a provision to the children of the marriage. And this was rational even as to the children of the first marriage, who had a fair hazard to succeed to the whole 15,000 merks, the sum being provided to his heirs whatsoever, failing heirs of the marriage.
The Lords preferred the Lady for her liferent, and found the daughters came in pari passu proportionally, effeiring to their respective sums.
For the Lady, Boswell.Alt. Sir John Ferguson.Clerk, Gibson.
Fol. Dic. v. 1. p. 73. Bruce, No 114, p. 141.
