Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XIII.
What understood to be sufficient implement.
Sir John Douglas v. Douglas
Date: 25 July 1751 Case No. No 119.
Found in conformity with the above.
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Sir William Douglas of Kelhead being obliged, by his contract of marriage, to secure his estate in favour of himself, and the heirs-male to be procreated thereof; which failing, the heirs-male to be procreated of any other subsequent marriage; which failing, the eldest heir-female of that marriage, without division; which failing, the eldest heir-female of any subsequent marriage, without division; which failing, his heirs and assignees whatsoever; disponed the same, by an entail, to himself in liferent, and to John Douglas, his eldest son, and the heirs-male of his body, in fee; which failing, with other substitutions, and under conditions, as after-mentioned.
Sir John Douglas, the institute, raised a reduction of this tailzie, as in defraud of the obligation in his father's contract of marriage, whereby he was bound to give him the estate free, and had only given it him under a tailzie; and had thereby preferred his daughters, in case of failure of heirs-male, to the daughters of his son, who were, as the heirs-female of his marriage, substituted immediately to the heirs-male of his body; he had disabled the institute from altering the order of succession; from burdening the estate with debts; and had obliged him to purge all debts of his father's contracting, or his own, before his being entered or infeft in the lands; and, at the same time, to procure himself timeously infeft, and not to suffer the lands to lie in non-entry: He has obliged him to cause all the prohibitory and irritant clauses of the tailzie to be inserted in the rights to follow thereupon; which is not in his power, as the bulk of the estate holds of a subject, who is not obliged to insert in his charters clauses prejudicial to his own casualties: The heirs have only power of providing their wives with an annuity to the extent of 2000 merks Scots, or of 1000 merks, if there shall be another annuity subsisting on the estate; and
“to burden the said estate and lands with any sum not exceeding 20,000 merks Scots, for providing their daughters, or younger children; and declaring further, that the provisions so to be granted to the younger children shall be expressly burdened with their assuming and using the surname of Douglas; otherwise the said provision of such of the said younger children, who shall not use the said surname, shall be void and null;”
so that even the daughters, under the forfeiture of their share of this provision, are burdened with using the surname. Whatever may be held in general of a father's having it in his power to tailzie an estate, which he is bound to give the heirs of his marriage, when it is opulent, and he does not prefer any other heirs to those in whose favour he stands obliged; in this case, it was not allowable, as the estate, of about L. 380 Sterling yearly, descended to Sir John, burdened with an annuity to his mother of 2000 merks, and with the charge of the tailzier's younger children, to whom aliments were granted, to the value of L. 1000 Sterling; and Sir John himself had necessarily contracted debts, for the maintenance of his own family, for which his father had granted him no suitable allowance.
The Lord Ordinary, 11th July 1751, “Having considered the tailzie, and several clauses therein, particularly that clause, whereby, notwithstanding, that, by Sir William Douglas, the maker, his contract of marriage, he was bound, on failure of heirs-male of his body, to provide the estate to the eldest heir-female of the marriage, he, in the tailzie, preferred his own daughters then existing; which failing, any other lawful daughter or daughters of his body, to be born after that date, in their order, to the pursuer's daughters; sustained the reasons of reduction of the tailzie.”
On bill and answers, the Lords adhered.
Act. Ferguson.
Fol. Dic. v. 4. p. 189. D. Falconer, v. 2. No 226. p. 273.
*** See 23d January 1747, Ker against Kers, No 116. p. 12987. and 17th July 1751, Strang against Strang, supra.
