A person, in his son's contract of marriage, fraudulently concealing his circumstances, the provisions to the wife and children were found preferable to his reserved liferent.
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John Hogg younger of Cammo made a proposal of marriage to Barbara Musgrave, sister to Sir Philip Musgrave of Edinshall; and to facilitate the compliance of the Lady and her relations, John Hogg his father laid before them a state of his affairs, which appeared afterwards to have been fallacious, considerably enlarging his funds, and diminishing his debts.
The marriage was agreed to, and a contract was executed, disponing the estate to the son and his heirs male; a jointure of L. 150 Sterling to the Lady; the sum of L. 2500 to be divided betwixt three or more daughters, if there should be no heir-male; reserving to John Hogg elder his liferent of part of the estate, or an annuity of L. 150 Sterling, with power to burden with L. 500, and under the burden of L. 1000 to John Hogg's younger children, payable at his death, of which 9000 merks Scots to a daughter who predeceast her father, and which in that case was stipulated to return, so that there was no question concerning it; the interest of 3000 merks as an alimentary provision to another daughter during her life; and 6000 merks to a son who died pending the process, which John alleged fell to his representatives, but they not being brought into the field, there was no determination given thereon.
The deficiency was found during the subsistence of the marriage; and John Hogg elder renounced his power of burdening further, and restricted his annuity to L. 90, and John younger died, leaving four daughters, who insisted in an action against their grandfather and his younger children, for having it found, that the annuity and burdening provisions could not compete, on the estate disponed to their father, with them onerous creditors; as it was in the view of the provisions made to them that the marriage was contracted, and their mother's portion paid; especially as there was a fund for paying them only L. 1000 of their portions, and they behoved to lose the remainder, and even that made up in part of extraneous acquisitions of their father, not flowing from his.
The Lords, 1st December 1748, ‘found the provisions in the contract of marriage in favours of the daughters of the marriage, were preferable to the reserved liferent of the defender, and to the provisions, to his younger children; reserving to the defender to be heard, how fax he is entitled to plead the beneficium competentiæ.’
On bill and answers,
‘The Lords adhered, with regard to the pursuer's preference to the defender's liferent, reserving to him to be heard on the beneficium competentiæ;; and to Margaret, how far she could compete on her alimentary provision.’ See No 4 p. 1390.
Reporter, Drummore.Act. W. Grant et Lockhart.Alt. R. Craigie et A. Murray.Clerk, Gibson.
Fol. Dic. v. 3. p. 241. D. Falconer, v. 2. No 80. p. 86.*** Kilkerran reports the same case:
John Hogg elder of Cammo was generally thought to be a rich man, nor was his own family let into the secret, that it was only so in appearance; for, when, with his consent, John his eldest son made proposals of marriage to Barbara Musgrave, daughter to Sir Christopher Musgrave of Edenhall in Westmorland, the said John Hogg elder, by a writing under his hand, set forth his real estate in land and houses in Edinburgh to be about L. 860 Sterling yearly, and his moveable effects to be about L. 5000 Sterling, and that his debts did not exceed L. 8300. Upon the faith of this representation, the marriage was concluded; and, by the contract, the estate real and personal was disponed to his said son, and the heir-male of the marriage, whom failing, to his other heirs-male, burdened with an annuity to the bride, in case of her survivance, of L. 150 Sterling, with all his debts already contracted, L. 1500 of provision to his younger children, and an aliment of L. 100 Scots to an infirm daughter, reserving also to himself a liferent of L. 200 Sterling. And in the last place, in case there should be only daughters of the marriage, John Hogg younger to pay them, if three or more of them, which was the event that happened, L. 2500 Sterling at the first term after his death.
Soon after the marriage, John Hogg the son came to discover he had been imposed upon; for besides that the rental of the real and extent of the personal estate had been much exaggerated, the debts, instead of L. 8000, were about L. 14000; and in a word, such were the circumstances, that he was obliged to sell first a part, and soon after what remained of the land estate; to which sales the Lady consented, upon security being given her for her annuity, in case of her survivance, upon certain old tenements in Edinburgh, which were part of the real estate; and to which sales John Hogg elder also consented for his right of liferent, which he restricted to L. 90 Sterling, and accepted a security for it secundo loco upon the foresaid houses in Edinburgh, which, in the event the Lady's liferent should take place, were scarce able to answer it.
The event soon happened; the young man died, leaving his Lady and only four daughters; and all the fund that remained for the Lady's annuity, the old man's restricted reserved liferent, and the daughters' provisions, being the said houses in Edinburgh, and L. 1000 Sterling remaining of the price of Cammo, a process was brought at the instance of the daughters, for having it found and declared that they were preferable for their provisions to the reserved liferent of their grandfather, and to the provisions to his younger children.
And accordingly the Lords ‘so found, reserving to the said John Hogg to be heard, how far he is entitled to plead the beneficium competentiæ?’
This was an uncommon case; there have been many instances of pacta contra fidem, sometimes by a constraint on the bridegroom, sometimes with his concurrence; but here was something of a very different nature, a father disponing all he had without any secret reservation, but a reservation open and agreed to, though what his estate could not afford, the extent whereof he had misrepresented from pride and vanity, a motive idle and foolish, rather than, properly speaking, fraudulent; yet, as by means of this false state and unfair representation of his fortune and estate, from whatever motive it had proceeded, he had induced the Lady and her friends to enter upon the treaty of marriage, whereby they had covenanted as for the Lady's liferent, so for the issue of the marriage, it was thought just, that since there was a shortcoming of the funds, which he had averred himself to be possessed of, the deficiency should rather land upon the reservations he had made for himself and his other children, than upon the daughters of the marriage; and it was thought that the like plea might have lain to the son John Hogg younger himself, that the reserved liferent, faculties and burdens, had been submitted to on supposal of a full estate, such as was given out, which therefore could not be claimed without making good the fund out of which they were to be paid. See No 4. p. 1390.
