Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XV.
Can provisions in favour of Children in a Marriage-contract be disappointed by deeds of the Father?
William Graham v. John Coltrain
Date: 9 June 1743 Case No. No 132.
Where an estate was provided by marriage contract to the heirs of the marriage, the father was found not entitled to entail the estate to the exclusion of heirs-female.
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John Stewart writer in Edinburgh, (afterwards of Phisgill) intermarried, with Agnes Stewart, and, in the contract anno 1668, ‘she disponed all her lands to him, and to the heirs to be procreated betwixt them of the said marriage, &c. And, on the other hand, he provided this whole be then had, or should acquire, to the heirs thereof in fee.’
The contract contained a procuratory and precept by her, upon which the husband was infeft in her lands. Of this marriage there were several sons and daughters; David, the eldest son, died without issue before his father, as did Robert, the second son, leaving a daughter called Agnes Stewart. Anno 1719, Phisgill executed an entail of his estate, ‘in favours of himself, and the heirs male of his body; which failing, to the heirs female of his body, and the heirs-male of their bodies; the eldest heir-female succeeding without division, &c.’
It contained also a clause ‘secluding and debarring the daughter of Robert Stewart his son from succeeding to him in his lands and estate, or any part thereof, in all time coming, and likewise the usual clauses de non alienando et non contrahendo.’ This tailzie was registrated, and a charter and sasine followed thereon. Upon Phisgill's death, William his third son was served heir of tailzie to him, and he dying without issue, Agnes Stewart, William's eldest sister, took up the estate in the same manner, who likewise dying without issue, James Cultrain, son of Elizabeth Stewart, the second sister, seryed heir of tailzie to his aunt Agnes Stewart.
Agnes Stewart the daughter of Robert, Phisgill's second son, being advised, that her grandfather and grandmother's estate was provided to the heir of the marriage by the said contract, it was not in her grandfather's power to exclude her by the above settlement 1719, she being the heir of the marriage, granted alongst with her husband Mr Hathorn, a trust-bond to the pursuer, who having charged her to enter heir of line and provision to her grandfather in his lands and estate, adjudged from her and her husband, all their right to the estate of Phisgill, and thereupon brought a reduction of the settlement 1719, upon the following grounds:
1mo, Because Agnes Stewart, (Mrs Hathorn.) was the heir of the marriage by the contract 1668, therefore her grandfather could not exclude her by any voluntary or gratuitous deed, and that such was the above entail, whereby her uncle and aunts and their descendants, who were not heirs of the marriage, were preferred to her in the succession.
2do, The settlement was directly in contradiction to and contra fidem of the contract of marriage, in respect the heirs-male of the husband's body, though of another marriage, are preferred to the heirs-female of the marriage, as also the heirs-female of another marriage, and his collateral heirs-male, are preferred in the succession of the wife's estate to her heirs.
3tio, It was irrational, as it not only postpones Mrs Hathorn, the heir of the marriage, and his heirs at law to William his son, but likewise postpones her to all his daughters and their issue, and to his collateral heirs-male; nay farther, excludes her for ever from the succession, without giving her a shilling, though, at the date thereof she was an infant, and neither had or could have offended him.
And, in support of these reasons, it was pleaded, That as Mrs Hathorn's father was the eldest son of the marriage, upon the death of David his elder brother, and was expectant heir thereof, so every right descendible to him, unless limited to heirs-male, did, upon his death, belong to her; and that it was impossible the character of heir of the marriage could belong to her uncle or aunts, &c. while she or her issue existed. That stipulations in a marriage-covenant, in favours of the heir of the marriage, as they are the conditions upon which the parties enter thereunto, as they are binding upon the parents and other parties contractors, so they establish a right of credit in the issue of the marriage, not to be defeated by either of the parties contractors, nor by both concurring together; that the injustice of the settlement 1719 was obvious in many respects; to instance one of several, Phisgill's son of a second marriage, had he survived his wife, would have excluded all the female descendants of the marriage, not only with respect to the father's estate, but also quoad their mother's. Nor is it an answer to this observation, that the event did not happen, as the settlement must be considered as it stands; for it being one deed, cannot be divided, but must be reduced in toto.
Argued in defence, That provisions to heirs and bairns of a marriage, are in common usage understood equipollent; that the term ‘bairns' is exegetic of heirs; and that by our written feudal law, heirs of one's body and children, are equivalent; and so it has been determined, not only in the case of a land-estate, but in provisions of a sum of money. At the same time, the governing rule in all such cases is, to consider the intention of the parties contractors, whether they designed the provision to the eldest son only, or for the whole children equally. Now, if we interpret the above provision by this rule, it must be found to extend to all the issue of the marriage, notwithstanding that the same is made to them under the character of heirs of the marriage. The whole the contractors then had, or should acquire, was provided to the heirs of the marriage; and it would be inconsistent with the parental affection or presumed intention of parties, to limit the same to the eldest son, who, in a strict sense, is the only heir, or to give him the whole in exclusion of the rest.
Wherefore, if this provision belonged equally to all the children of the marriage, the father had power to settle the same upon any one of them he chose to represent him, allowing reasonable provisions to the rest. Now, in the present case, Phisgill preferred his third son to the daughter of the second predeceased, and his own daughters likewise to her. This was a rational settlement, and such as most men would choose to make; therefore, there is no ground for reducing it, especially as the other children got rational provisions, such as they were content with. Phisgill certainly fulfilled the obligation on him to provide his children of the marriage, by settling the estate upon any one of them, and giving the rest suitable provisions. Robert himself, while alive, was suitably provided for, so he could have had no claim; consequently his daughter cannot impeach the settlement. Besides, if needful, it can be proved, that Phisgill had good grounds with being dissatisfied with Robert's conduct and that of his wife, so as not to choose their daughter for his representative. January 29. 1678, Stewart, No 4. p. 12842.; December 16. 1738, Campbell, No 127. p. 13004.; Craig, lib. 2. Dieg. 14. § 11; Stair, lib. 3. tit. 15. § 19. January 20, 1725, Adair, See Appendix; January 1736, Heirs Portioners of Milne, See Appendix; January 1737, Trail, No 114. p. 12985.
The Lords found, that the estate both of the husband and wife, being provided by the contract of marriage betwixt John Stewart and Agnes Stewart, to the heirs of the marriage, the said John Stewart had no power to make the deed of entail 1719; and that the same was contra fidem tabularum nuptialium, and therefore reduced the same.
