Scottish Court of Session Decisions

Subject_1 DECISIONS OF THE LORDS OF COUNSEL AND SESSION, COLLECTED BY SIR JAMES BURNETT, LORD MONBODDO.

Logan
v.
Drummond

Date: 14 July 1752

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[Elch, No. 17, Provision to Heirs.]

An aunt disponed to two nieces certain heritable and moveable subjects, “to them and the heirs of their body, and, failing of any of them by decease without heirs of their body, to the survivor of them two, and the heirs of her body; whom failing, to A. B., and his heirs and assignees whatsoever;” and with this farther limitation, “that it should not be in the power of the grantees, or either of them, to alter or prejudge the order of succession to the subjects generally and particularly before-mentioned.”

One of these ladies entered into a post-nuptial contract of marriage, by which certain settlements were made by the husband upon her and the children that should be of the marriage, and she on her part made a general disposition omnium bonorum in favour of her husband. She died without heirs, and the question was, Whether by this disposition her share of the subjects given by the aunt was conveyed to the husband, in prejudice of the other sister?

The Lords were all of opinion, 1mo, That the clause prohibiting the alteration of the succession excluded all gratuitous alienations of the subjects; 2do, That it did not exclude alienation for onerous causes: so that the only question was, Whether or not the marriage and marriage-settlement upon the lady and her heirs was such an onerous consideration as would defeat the substitution, fortified by the prohibitory clauses above-recited? It was said that the provision stipulated in this case by the husband was elusory, because he was worth little or nothing; but the President was of opinion that the marriage itself was an onerous consideration sufficient; and therefore, without inquiring into the husband's circumstances, he was for sustaining the conveyance in his favour: and this was the opinion of the majority. Elchies said, That it was a quæstio voluntatis what was the intention of the donor; that in the case of parents giving provisions to daughters not otherwise provided, it will be presumed, notwithstanding of any such prohibitory clause, that they intend not to hinder their daughters from conveying their portions in contracts of mariage, and thereby procuring to themselves husbands; but in cases of provisions made by strangers, or more distant relations, or even by parents to daughters otherwise provided, such clauses have received a more strict interpretation, so as to bar conveyances to husbands in marriage-contracts; and he quoted some late decisions where this was found, even where there was only a clause of return to the granter, which only implies what is here expressed by the clause prohibiting to alter the succession. Elchies also made a distinction betwixt a disposition omnium bonorum, of this kind, and a particular conveyance of the subject in question; for he thought that the general disposition carried the right, with all its qualities and conditions, and particularly with the condition that, if the disponee died without heirs of her body, the subjects should fall to the next substitute.

This interlocutor adhered to, November 27th, 1752; dissent. Elch. and the decisions: See June 11, 1740.