Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. III.
Provision that the Child shall be an equal sharer in the Father's means and effects.
Isabel Brown Spouse to Robert Pyle, Writer in Kelso, v. Her Husband
Date: 4 February 1715 Case No. No 16.
A man, in his daughter's contract of marriage, bound himself that, failing heirs male, she should be an heir portioner. There being no other children, it was found, the father was entitled so to qualify his daughter's right as to exclude the jus mariti.
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Lancelot Brown, feuar in Kelso, having contracted Isabel his daughter in marriage with Robert Pyle, amongst other things it is provided in the contract, that in case he had no heirs-male of his present, or any other marriage, then Isabel was to be heir portioner, and bairn of the house with the other daughter or daughters. Lancelot having married a second wife, repeats the same, or very like clause in his own contract of marriage; but there being no children of the marriage, makes a tailzie of some lands and houses in favours of Isabel for her liferent use allenarly, and to the heirs of her body; which failing, to others therein substituted; in which disposition, the husband Robert Pyle his jus mariti is expressly excluded, even as to the wife's liferent, which her father there declares, shall be possest by herself allenarly, and the rents applied to her own use. After the father's decease, the wife raised declarator against her Husband, for declaring the foresaid exclusion of his jus mariti, and that she had the absolute power of uplifting the rents, &c.
Answered for the defender; That the father could not make a legal conveyance in these terms, in regard of the provision above mentioned, in the defender's contract with the daughter, by which there was jus quæsitum to the Husband in case of that succession, in so far as the jus mariti might extend to; et quod meum est sine facto meo a me avelli nequit. 2do, The same clause is renewed in his own second contract, which carries not only a new provision in Isabel's favours, but supposes and implies, that she was settled in the right as heir, by an anterior provision.
Replied for the pursuer; 1mo, In general, that there is a great difference betwixt a husband's renouncing his jus mariti, and a third party's disponing to a wife with that express quality, since a third party may impose what conditions and qualities he pleases upon his own grant; with which the husband must take it, or otherwise want the right. 2do, The above clause gave no such jus quæsitum to the Husband; for, 1mo, The Husband having got a good portion, the above provision is not such a precise tie, as the father might not rationally dispose otherwise; but only he could not make plainly fraudulent deeds to overturn this settlement, which was only provisional, as in the case of a clause of conquest, since still Isabel as heir portioner behoved to represent her father, and fulfil his deeds not fraudulent. 2do, This clause was not adjected in favours of the Husband's jus mariti, which was not in view, but the clause was personal to the wife, so that there is no jus quæsitum thereby to the Husband, since the clause being designed only to bring in Isabel equally with any other female heirs, the Husband's marrying one of them is per accidens only. 3tio, The father having provided the liferent to Isabel, and the fee to the heirs of her body, he had effectually fulfilled that clause, according to the true intent of it, though the Husband's jus mariti be excluded, there being nothing in that provision demonstrative that it was given upon account of the Husband's jus mariti, but only out of respect to Isabel's mother and her issue. 4to, The clause itself was conditional, if the father should have other daughters alive at his decease, but that condition did not exist, nor does the repeating of the clause in the second contract of marriage make it of more force, but only shews the father was remaining in the same purpose and destination in favours of Isabel, as in the first.
“The Lords found, that notwithstanding of the 1st and 2d contracts of marriage, the father might qualify the right to his daughter, to the exclusions of the jus mariti”
Act. Sir Walter Pringle.Alt. Robert Dundas.Clerk, Mackenzie.
Fol. Dic. v. 2. p. 277. Bruce, v. 1. No 55. p. 70.
