Marion Henderson, and Hugh Campbell, her Husband, for his Interest, v. David Henderson
1728.
February. Case No. No 33.
A father, by any deed to take effect only after his death, (tho' not on deathbed,) cannot disappoint his children's legitim.
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Claud Henderson, merchant in Glasgow, having a son and three daughters, made a disposition of his whole heritable and moveable estate to his son; wherein “for the love and favour he had to him, he, the said Claud Henderson, in case it should happen him to depart this life before his said son, gives, grants, and dispones to him, his heirs, executors, &c. all and whatsoever debts, goods, gear, lands, heritages, &c. belonging or competent to him, or what he should thereafter purchase or acquire.” Then follows a clause, empowering the said son “to procure himself served heir of line in special and in general to his father, and to obtain himself executor decerned and confirmed to him;” and he thereby nominates his said son “his sole executor and universal legatar, and intromitter with, his goods and gear whatsoever.” Of the same date, he grants bonds of provision to his daughters, which he declares, “should be in full satisfaction of all they could anyway claim by his decease.” The other daughters resting satisfied with their provisions, Marion, the youngest, rejecting her bond, intented a process against her brother, the disponee, to account to her for her legitim; and she contended, That, by no testamentary deed, or donation mortis causa, can a father evacuate his children's right of legitim.
It was allowed by the defender, That the legitim is so founded in law, that a father cannot arbitrarily exclude his children from it; but then he contended, That the father, as administrator of the goods in communion, with ample and almost absolute powers; as he can arbitrarily change his heritage into moveables, or his moveables into heritage; as he can alienate for onerous or rational causes, or even gratuitously, providing it be not dolose to disappoint the legitim; no reason can be assigned, why, under the same restriction, these powers may not be exercised in deeds testamentary or mortis causa, if not done in lecto agritudinis, as well as deeds inter vivos; and it was expressly determined, Thomson contra the Creditors of Thin, No 141. p. 5939, voce Husband and Wife, “That the husband hath an absolute power of disposal of all the moveables, both to take effect in his life, and after his death, sine dolo.” And Sir James Stewart, in his Answers to Dirleton, voce Bonds of Provision, holds, that bonds of provision, lying by a father at his death, will come off the whole head of the executry, and so impair the legitim. In the present case, there is not the smallest pretence to allege, that the father designed fraudfully to cut his daughters out of their legitim; on the contrary, he dealt with them bountifully; he bound himself in a determinate provision of 12,000 merks to each, much more than was provided to them by their mother's contract of marriage; and if he gave his son more ample provisions with a view to establish a family, that is a liberty with great reason to be indulged in one, whose stock is the acquisition of his industry. It is certain, had Mr Henderson dreamed of the least difficulty in the method he chose to execute his will, he had many other ways to make it effectual; he would not have failed to give his son an absolute disposition inter vivos; or, if he inclined it should remain with himself during his life, it was but turning his moveables into heritage, and the matter was done. And, truly, to take the dispute in this view, it appears unaccountable, that the law should arbitrarily restrain a man from disposing of his effects in a certain shape, which yet it freely allows him to do, by making a small circuit.
Answered for the pursuer, A father can change his moveables into heritage, alienate upon onerous or reasonable considerations, even upon some occasions, gratuitously, or do any other reasonable deeds inter vivos, because these are all of them acts of administration, indeed more exuberant than belong to ordinary trustees; but when he goes about to make a testament, name executors, or donatars mortis causa, there he is acting quite out of his sphere; he drops the character of administrator and assumes that of absolute proprietor; and therefore deeds of that nature can have no effect, except upon the dead's part, of which he has the absolute disposal. 2do, The legitim is a portion of goods, which necessarily accrues to the children ipso facto, upon the death of their father; whatever was truly his at his death, the third share falls to them; and from the nature of the thing, no testamentary deed, or mortis causa donation can exclude the legitim, because these take no effect till after death. And hence it is thought that a bond of provision lying by a father at his death, cannot impair the legitim, because it was never a debt upon him, and consequently not upon the legitim; and this is the Viscount of Stair's opinion, who says, l. 1. t. 5. § 6. § 2. in med. ‘That bonds of provision delivered in liege poustie, do as other debts, affect the whole executry;’ plainly intimating, that unless delivered in liege poustie, they do not. And the decision mentioned above, Thomson contra the Creditors of Thin, is perfectly consistent with this; the case there was of a bond delivered in liege poustie, suspended only as to the payment till the death of the granter; and from the decision applied to the case, can be inferred no more, but that if a man makes a formal alienation inter vivos, which naturally excludes the legitim, he may suspend the effects till after his death, providing it be not dolose to disappoint the legitim.
These grounds of law do both of them conclude strongly against the defender; for his right is not only a donation mortis causa, of his whole effects, which surely passes the power of an administrator, however exuberant; but these effects all of them were absolutely the father's when he died, and of necessary consequence subjected to the legitim.
There was another argument pleaded for the defender, That the legitim surely is no stronger than a provision of conquest to bairns in a contract of marriage; which the father, it is true, cannot fraudulently disappoint, because of the obligement brought upon him by his deed, similar to the obligement upon him in the case of legitim, arising from the law; but that he may rationally divide such conquest among his children, giving to one more, to another less, according to his pleasure, provided he does not exclude any of them, seems to be the opinion of our lawyers; and so it was decided betwixt A. and J. Dowies, 9th Jan. 1728, voce Provision to Heirs and Children, where the Lords found, “that the father had a power of making an unequal division of the sums, lands, and conquests amongst the heirs and bairns of the marriage; but that he could not totally exclude any of them without a cause, from a share thereof” And in this case it was contended, that the father had gone no further than to make an unequal division; and was so far from excluding any of his children, that they have all of them got reasonable provisions, suitable to their father's estate, and their station in the world.
The pursuer answered, There is no similitude betwixt the cases; a provision of conquest to the heirs and bairns of a marriage, was never intended further, than that the father may not have it in his power arbitrarily to disappoint the children of the marriage; and it is perfectly consistent with this, that one child have more than another, for this is still keeping within the limits of his obligation. But the legitim is not an obligation, it is a right to a share of the father's moveables, which takes place ipso facto upon his death, in favours of every one of the children equally; and the law of the legitim considers not the children of one marriage, in opposition to the children of another marriage; or the whole children conjunctly, in opposition to strangers; but each child separately for an equal share.
‘The Lords found the pursuer entitled to her legitim.’
Fol. Dic. v. 3. p. 545. Rem. Dec. v. 1. No 107. p. 207.
