Scottish Court of Session Decisions

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

Father's Power of distributing among his Children, or the Heirs of a Marriage, the Subjects provided to them.

James Douglas, eldest lawful Son to the deceased John Douglas of Tilliwhillie,
v.
John Douglas the second Son

Date: 10 July 1724
Case No. No 125.

In a contract of marriage, the estate being provided to the heir of the marriage; if in any case the father can pass by the heir, and give the estate to another son of the marriage?

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James Douglas of Inchmarlo, in his son John Douglas's contract of marriage, settled the lands of Inchmarlo, “upon him and wife in conjunct fee and liferent, and to the heirs-male to be procreated of the marriage.” Of this marriage were two sons, James and John, the parties in this debate; the eldest of whom, James, for his weakness and folly, was neglected by his father; who, notwithstanding the provision in his contract of marriage to heirs-male, settled the estate upon John, second son of the same marriage. Of this settlement James raised reduction, after the father's decease, upon this medium, That it was ultra vires of his father to alter the settlement made in his favour, contracts of marriage being so far onerous, that they cannot be gratuitously disappointed; especially here, where the estate came from the grandfather, and was not the father's ab ante.

To which it was answered, That the import of such provisions to the heir-male of a marriage, does not limit the succession to the eldest, more than any other son of the marriage; being only intended to provide against fraudulent and gratuitous dispositions in favour of children of another marriage; so that the contract settling the succession to the heirs-male of a marriage is duly implemented, when the father dispones the estate to any of the sons he thinks best deserving. The reason is, that contracts of marriage, though onerous as to the wife's interest, are noway onerous as to the children; so that though her interest will exclude gratuitous alienations in defraud of her children, it will never weigh in favour of one son more than another; the legal presumption being, that they are all equally in her favour. But whatever may be in the general point, the decision must go for the defender, upon this medium, That if it should be allowed the father cannot do merely gratuitous and arbitrary deeds, which might be interpreted in defraud of the marriage-settlement, no body denies a power of doing rational deeds; whence he has a power of providing a second wife and children, and must have a discretionary power of settling the estate upon a second son, where the eldest is undeserving; and in this case, there is sufficient evidence that the pursuer is a weak, foolish, extravagant person.

“The Lords found, That in this circumstantiate case, the father might dispose of the estate to either of the sons of the same marriage; and therefore assoilzied from the reduction.”

Fol. Dic. v. 2. p. 289. Rem. Dec. v. 2. No 50. p. 98. *** Edgar reports this case:

1724. July 23.—James Douglas of Inchmarlo, grandfather to these parties, made a settlement of his estate of Inchmarlo, in his son John's contract of marriage, “upon him and his wife in conjunct-fee and liferent, and the heirs-male to be procreate of the marriage.”

Of this marriage there were two sons, James and John, and the father, notwithstanding of the settlement, passed by the eldest son, and granted a disposition of the estate in favour of the younger, upon a narrative of the undutiful and disobedient behaviour of his eldest son, but with the burden of 300 merks yearly of aliment to him.

After the father's decease, James insisted in a reduction of the disposition granted in favour of his younger brother, and contended, That his father had no power, by the contract, to make a settlement in prejudice of him; not could he, by the law of Scotland, divert the succession at his discretion, since it was provided to the heir-male; and the rather, that he himself was not ab ante fiar, but had the estate settled upon him by the same deed. And as to the narrative of the disposition, with respect to his undutiful behaviour, it was alleged, That neither that simple assertion, nor any thing that appeared in process, could be deemed a legal proof.

It was answered, That the father was fiar of the estate, and could have disposed of it for onerous, necessary, or reasonable causes; that he had done nothing contra fidem tabularum nuptialium, having sufficiently implemented the contract, by giving the estate to one of the sons of the marriage, though he neglected the eldest, upon very just grounds, which were not only instructed by the narrative of the disposition, but from attestations of his uncles and nearest relations, giving the same account of his conduct.

The Lord Newhall Ordinary found, “That in this circumstantiate case, the father might dispose of the estate to any of the sons of the same marriage.” And the Lords “adhered.”

Act. Ja. Graham, sen. Alt. Jo. Horn. Edgar, p. 100.