Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Children of Colonel James Campbell
v.
Children of his Eldest Son

Date: 23 December 1739

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[Elch., No. 2, Arbitrium Boni Viri, and No. 20, Jurisdiction; Kilk., No. 4, Prov. to Heirs.]

This case we mentioned before, December 1, 1738.

The question now was, Whether the Lords could sustain themselves judges of the provisions for the younger children, in place of the arbiters named by the father, who declined to give any judgment?

The Lords found they could not, agreeably either to the civil law, p. 1, Inst. de Empt., or their own decisions, Corsan against Barncleugh, February 21, 1734. And in this point the Lords were unanimous; but Arniston and others were of opinion that the settlement might be sustained, as if the father, by settling all his estate upon his eldest son, had only exceeded his power, and not done a deed altogether out of his power. For put the case, that the father had made provisions to his younger children, but that these provisions were irrational and incompetent; in that case the younger children could not reduce the settlement in totum, but would only have an action in supplement of their provisions. But the majority were of the contrary opinion, and thought that though it was in the father’s power to restrict the provisions of the younger children, yet it was not in his power to dispone all his estate to his eldest son, these being deeds of a very different nature; and that the father could not be said properly to exceed his power, but to do a deed which he had no power at all to do.