A man, in his contract of marriage, bound himself to provide a sum to daughters, in, case his estate, which was entailed, should, by failure of certain heirs male, descend to other male substitutes. The estate was forfeited. The daughters were found, in that event, to have no claim.
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By contract of marriage dated in the year 1719, betwixt Laurence Oliphant of Gask and his wife, it was provided, “That, in consideration the estate of Gask stood entailed to the heirs male of the body of the said Laurence; which failing, to the other heirs male; and that thereby the daughters were excluded; therefore the said Laurence binds himself and his heirs, that failing heirs male of that marriage, who should succeed to and enjoy the estate, so that the same should descend to another heir male; then, and in that case, to provide the daughters of that marriage thus, viz. if two or more, to 25,000 merks, &c. payable at the ages of fixteen, or marriage,” &c.
Of this marriage there was issue a son, and Margaret and Janet two daughters.
Laurence and his son, having joined in the rebellion 1745, were attainted. Whereupon Margaret and her husband claimed, 1mo, the sums in the contract of marriage, in case the son should happen to die before his father; and pleaded, that as the father could not disappoint her of this conditional debt by a voluntary deed disponing the estate, so neither could he disappoint her by his crime.
Answered for his Majesty's Advocate: The condition of this debt was, “that in case there should be no son of this marriage who should succeed to the estate of Gask, then it should go to the other heirs male.” But this condition never can exist; for although the son were dead, yet as the estate is forfeited, no other heir male can succeed. It is absurd to say, that, because the son cannot succeed, therefore the daughters are entitled. The forfeiture of the estate affects the right of the whole issue of Laurence. He could have contracted debt on the estate to have been preferable to this provision: therefore his forfeiture will bar this provision.
‘The Lords dismissed this part of the claim.’
Margaret's second claim was founded on the following facts. In the year 1731, her father Laurence granted a bond for 9000 merks to James Oliphant his father; who, of even date, assigned the same to the said Margaret and Janet. The assignation contained this clause, viz. “with power also to the said Laurence, if he shall find reasonable cause, to disappoint his said two daughters, and settle the above sums upon any one of them, or upon all or any other of his children; but always so, that the same should be settled upon any one of the children, one or more, procreate betwixt him and his said spouse.” The subscriptions to the said bond of 9000 merks, and assignation thereof, were afterwards cancelled, although it was not known by whom.
In the year 1739, Laurence granted two bonds of provision; the one to his daughter Margaret of 10,000 merks, payable at her marriage or his own death; and the other to Janet of 9000 merks, under this provision, that in case of her death before himself, or before her marriage, 5000 merks thereof should accrue to Margaret. And each of these two bonds contained a clause, making them revocable at the pleasure of the granter.
Whereupon Margaret claimed, 2do, her proportion of the said bond of 9000 merks granted by her father, and assigned to her by her grandfather. She produced a letter of the same date with the bond and assignation, sent by her said grandfather to her mother, recommending to her “to be careful of the inclosed writs;” which, although they are not named in the letter, the claimant contended could be no other than the said bond and assignation. If this was doubted, she offered proof by her mother's oath. Upon this she pleaded, That it was a presumption, her father, upon his executing the said new bonds of provision in the 1739, had cancelled the subscriptions of the said old bond and assignation. This, she contended, he had no power to do; although she allowed that, by the clause above-mentioned, he had power to have given the sum to any other child of the marriage. In case this claim should be allowed, she is satisfied that it should be deducted out of the said new bonds of provision.
Answered, This bond and assignation were cancelled, therefore could not be the foundation of a claim, and there was no evidence the father had done it. 2do, Although the father had done it, he had power so to do in virtue of the clause above-mentioned; seeing the cancelment was a virtual assignation to the eldest son, who was a child of the marriage; and by his forfeiture it fell to the Crown.
‘The Lords also dismissed this claim.’
Margaret claimed, 3tio, her interest in the new bonds of provision dated in the 1739, For that, in the first place, the clause making them revocable at the father's pleasure, being a personal faculty, could not be transmitted to the Crown by the forfeiture. The like had been uniformly determined by the courts in England, and had been followed in many cases adjudged in Scotland after the rebellion 1715; particularly in the cases of the late Earl of Nithsdale, of the Earl of Panmuir, of the children of Stirling of Keir, and of the children of Scrymgeor of Bowhill*. In the next place, if it shall be allowed that these new bonds came in place of the cancelled bond, they must be considered as granted for a valuable consideration. If so, as Laurence had no power to deprive the claimant and her sister of their right in that old bond, the power of revocation in the new bonds must be held pro non adjecto.
Answered, 1mo, These new bonds do not appear ever to have been delivered; therefore, without respect to the power of revocation, they cannot be considered as debts binding the forfeiting person, or which might have affected his estate on the day mentioned in the vesting act.
With respect to faculties of revocation passing to the Crown by forfeiture, it is to be observed, that, in all the cases mentioned for the claimant, conveyances had been made to third parties, and possession had followed upon them: but the ease here is quite different; the bonds in question never were delivered; so there was no right transferred to the claimant, and therefore there was no necessity of a revocation. Were the claimant's doctrine to be established, all forfeitures could easily be eluded.
2do, There is no proper evidence of the father's having cancelled the old bond, and of the new bond's having been granted in lieu of it. But further, though this were made out, it would not supply the want of delivery.
The Lords seemed to think, that as these new bonds never were delivered, and were revocable, they did not bind the forfeiting person at the time of the forfeiture.
‘They dismissed also this claim.’
Act. Ja. Ferguson, Dav. Græme.Alt. Lord Advocate, And. Pringle.Clerk, Gibson.
Fol. Dic. v. 3. p. 127.
Fac. Col. No 30. p. 48.
