A father disponed his whole estate in his son's contract of marriage, reserving an annuity to himself; but before the marriage, the son became bound to grant suitable provisions to the other children. The Lords found that, in regard there was no obligation in the contract of marriage to relieve the son of the younger children's provisions, the bonds libelled so far as rational provisions, were not granted in fraudem pactorum.
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Duff of Drummuire having contracted his daughter with the eldest son of Sir James Gordon of Lesmore, the whole estate of Lesmore, without reserving any thing, saving a yearly aliment to Sir James, was disponed in the contract and Drummuire paid a suitable tocher; but the day before the marriage, there was a private paper granted by the son to his father Sir James, wherein he obliges himself to grant bonds of provision to his younger brethren and sisters, for such a sum of money as his said father should think fit to bestow upon them, payable at what terms the father should determine. The son having died without making these bonds, Sir James himself, in supplement thereof, granted bonds of provision to his said younger children: And now Sir William the grandchild, being pursued upon the said bonds, repeats a reduction upon this head, that they were gtanted “contra fidem tabularum nuptialium et pacta dotalia,” both in relation to Drummuire the father, who paid the tocher, and Sir William the heir of the marriage.
Answered for the pursuer; That the obligement granted by the son is no ways derogatory to the contract, it not being provided in the contract, that the estate shall not be burdened with the children's provisions; for, though it be not expressed that it shall be, yet there is a great difference betwixt doing deed whereof there is no mention in the contract; for, had it contained an express clause burdening the father with the children's provisions or the like, then the latent obligation had been indeed contra fidem; for that imports contrary to what is pactioned; but here there is no such provision: And therefore, 2do, As a consequence of this, where father and son are not expressly tied up by the contract, they may do rational deeds; and it is a very rational deed to provide younger children; nay, it was debitum naturæ upon the father, and consequently upon his son and heir, præcipiens bæreditatem by the contract; and since Drummuire knew there were younger children in familia, and unprovided, he could not think but that the father and son might, notwithstanding of the contract, reasonably provide for them; and what is rational cannot be said to be fraudulent.
Replied for Sir William Gordon; That the marriage-settlement being fairly stipulated, and it being therein agreed, that the lands enumerated should be disponed, without any other reservation than the father's aliment; and the tocher being accordingly paid; therefore, as Drummuire could elicit no deed from his apparent goodson, prejudicial to the contract, no more could Lesmore the father: 2do, Here Lesmore younger was plainly concussed, the paper in question being elicit before signing the contract, for he was thereby put under a force either to go into any terms his father should propose, or suffer the marriage to be deserted: 3tio, The paper was subscribed without the presence or knowledge of Drummuire, or any of his friends.
To the second, replied; That though it was reasonable Sir James should provide his younger children, yet, in common honesty, these provisions ought to have been propaled at communing about the marriage: Thus Voet, speaking of pacta dotalia, and clandestine frauds which may be used in prejudice thereof, says, “Non enim fraudibus hisce, quibus mortales etiam prudentissimi capi, decipi, ac circumveniri, facile possent, indulgendum est;” and Grænwegen, ad l. 4. C. De dot. promiss. putting the case betwixt public and private marriages, says, “Ita et clandestina, quæ, insciis propinquis, aut altera parte super dotibus et donariis, adversus publicos contractus ineuntur, pacta, nostris, et aliorum, moribus adeo improbantur, ut publicis tabulis standum sit, et secreta pactio paciscentibus non suffragetur:” And the Lords' decisions do here agree. Thus, 29th Nov. 1626, Scot against Scot, voce Provision to Heirs and Children; and Paton against Paton, No 26. p. 9475. the present case is almost decided in terminis: And Margaret Grieve against John Thomson, No 29. p. 9478. the Lords reduced a dischage, granted by a bridegroom to his father, of a sum he had engaged for in the contract, as being contra fidem tabularum nuptialium: So that the very keeping up of the said debts, or exacting an obligation of the above nature to grant provisions to the younger children, where there was no other fund for their payment than the estate disponed, was an express violation of the contract.
“The Lords sustained the reason, that the bond by the defender's father was granted contra fidem pactorum nuptialium, and reduced that bond.”
Act. Sir W. Pringle.Alt. Horn.Clerk, M'Kenzie.
Fol. Dic. v. 2. p. 22. Bruce, v. 2. No 20. p. 24.
*** Lord Kames account of this case is that given on the margin, which does not accord with Bruce's report. See Appendix.
