Bonds of provision to children in familia are good without delivery.
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The said Margaret pursued her brother John, as representing their father, for £100. Sterling, contained in a bond of provision granted by the father to her two years before his death.
The defences offered were, 1mo, That the bond, though granted in liege poustie, was not delivered till the father was on death-bed, and contained no clause dispensing with the not-delivery; 2do, The defunct's estate was by his contract provided to the defender, as heir of the marriage, so that he enjoyed it as heir of provision, which did indeed subject him to the onerous, or even rational debts or deeds of his father; but in so far as children's provisions were exorbitant, they were reducible, and the provisions to this daughter was unsuitable and exorbitant, considering the small estate the defunct left.
It was answered for the pursuer, 1mo, That bonds of provision to children in familia were good, though not delivered in the granter's lifetime, and though they did not contain a dispensing clause; Lord Stair, B. 1. T. 7. § 14.; 11th November 1624, the Bairns of Elderslie, No. 14. p. 6344.; 2do, That as the bond of provision was by no means exorbitant, so the allegeance was not relevant, the father being absolute fiar, and having thereby a power to burden the estate with provisions to younger children, especially of the same marriage.
The Lords repelled the defences, the daughter being a child of the same marriage.
Act. Sir Tho. Wallace.Alt. And. Macdoual.Clerk, Dalrymple.
Edgar, p. 149.
