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The now deceased Sir James Fowlis of Colington, upon death-bed, granted to each of his two daughters, Elizabeth and Mary, bonds for the sum of 4000 merks, as their provision and portion natural; of which bonds the now Sir James Fowlis of Colington, son to the defunct, intented reduction upon the head of death-bed; and it was pleaded for him, That the law of death-bed extends to all deeds whereby the heritage can be evicted, 7th January 1624, Schaw contra Gray, No 32. p. 3208.; and 1st July 1637, Riddel contra Richardson, No 35. p. 3212.; where the Lords repelled the allegeance, and sustained the reason of death-bed; for they found that a father could make no provision on death-bed in favours of his bairns, albeit unprovided, which might burden the heir with payment thereof; and that he could do nothing, but in so far as he might do in his own part, in law belonging to him, in so far as concerned his moveables:' Which is a decision directly in the case.
The defenders answered; That the provision of children being debitum naturæ, bonds of provision granted in satisfaction of that debt, ought to be sustained, in so far as they are suitable to the condition of the children, and of the father's estate. The rule is, Wherever there is a preceding debt, a party on death-bed may grant a bond, or anailzie land: And the law has made distinction, whether the debt had its rise from any antecedent civil, or natural cause; both being equally binding upon the heir, who, by our law, would be obliged to aliment the younger children, as well as to pay debts contracted by bond or otherwise to extraneous persons in liege poustie: And here the father, by granting the bonds of provision, has in effect done no more but regulated the fund of the aliment; which, when exorbitant, is subject to rectification of the judge, but if moderate, with respect to the circumstances of the estate and rank of the family, there can be no reason for the heir to reclaim, or allege that such provisions were to his prejudice. And this is Lord Stair's opinion, 1. 3. t. 4. § 29.; and a similar case to this was determined 23d February 1665, Jack contra Pollock, No 36. p. 3213. And as to the decision Riddel contra Richardson, it is answered, That the course of our law at that time was to allow no aliment to younger children, however necessitous, from the heir; which is otherwise now, according to the citation from Lord Stair, mentioned before. ‘And now,’ says that author, “since the Lords have frequently decerned aliment for bairns against the father's heirs, having competent estates; it is like the Lords will allow all provisions on death-bed, in so far as they may be competent aliments.”
Replied for the pursuer; A father is bound to aliment his children till their majority, that they are capable to provide for themselves; deeds on death-bed will be sustained so far as that obligation of aliment reaches; and this is all Lord Stair says: But here the bonds craved to be reduced are not alimentary bonds; they are bonds which the father was not under any antecedent obligation to grant, and therefore cannot stand against the force of a reduction upon the head of death-bed.
‘The Lords found the bonds reducible upon the head of death-bed.’
Fol. Dic. v. 1. p. 213. Rem. Dec. v. 1. No 27. p. 59.
