Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XIII.
The Onerosity of Provisions made in Postnuptial Contracts.
Creditors of James Strachan v. Ludovic Strachan
Date: 1 July 1754 Case No. No 105.
Provisions to children, in a post-nuptial contract, being made payable after the death of the father and mother, were found to confer no jus crediti, and creditors were preferred.
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James Strachan of Dalhackie became bound, in a postnuptial contract of marriage, to pay certain sums of money to the children, born or to be born of that marriage; the term of payment was declared to be at the first term after the decease of himself and of his wife.
In a competition between Ludovic Strachan, the only child of the marriage, and the creditors of James Strachan, it was objected for the creditors, That, with regard to the obligations in the contract aforesaid, Ludovic Strachan was to be considered as an heir of provision only; and therefore could not compete with the onerous creditors of his father.
Pleaded for Ludovic Strachan: It is the duty of a father to provide for his children; such provisions are onerous, and constitute them creditors to their father: as he who is solvent may become bound to strangers, so also may he to his own children; as he may make the existence and extent of his obligation to strangers depend on same uncertain event, so also may he in his provisions to his own family. Thus it was decided, 24th January 1724, in the case, Margaret Lyon against the creditors of Easter Ogle, (see p. 233.) In that case, provisions were made in favour of daughters to be born, and declared payable on the first of these three events, the day of their marriage, the attaining the age of eighteen, or the first term after the death of the father. And it was found, That a daughter, having right to such provision, might compete with the onerous creditors of the father.
Pleaded for the creditors of James Strachan: Contracts of marriage ought, in reason, to constitute the children heirs of provision only; they may, nevertheless, be so framed as to render the children creditors. In this case, however, the children are only made heirs of provision; for that here a sum of money is made payable after the death of the father; and which proves, That, during his life, there was no jus crediti constituted in favour of the children. Were this provision a jus crediti, this pendent obligation would exclude creditors from the date of the contract, which is absurd. Provisions made payable to children whenever they shall attain a certain age, produce action for payment from that time; the children are therefore creditors in such provisions: for, had these provisions ever been a right of succession, they could not have altered their nature, and become a debt from the term of payment.
The case of Margaret Lyon against the creditors of Easter Ogle is not in point: there the obligation was to pay at a term which might have happened before the death of the father; it was therefore found to be a jus crediti, not a destination to heirs: but the contrary would have been found, had the obligation been to pay at a certain term after the death of the father.
‘The Lords preferred the creditors.’
For the Creditors, Sir John Stewart.Alt. F. Grant.Reporter, Murkle.Clerk, Justice.
Fac. Col. No 109. p. 160.
