Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XXI.
Provisions in a postnuptial contract, whether effectual to competent with onerous creditors?
Strachan v. Creditors of Dalhaikie
Date: 2 July 1754 Case No. No 160.
The provision in a postnuptial contract of marriage, obliging the husband 'to satisfy and pay to his son already procreated, and to his other sons that shall exist, the sum of 18,000 merks, together with half of the conquest,' imports only a provision of succession.
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James Strachan of Dalhaikie, in a postnuptial contract of marriage, ‘bound and obliged him, his heirs, &c. to satisfy and pay to the children procreated, or to be procreated of the marriage, the following provisions, viz. to the son already procreated, and to him and the other sons, in case others shall exist of the marriage, the sum of 18,000 merks; together with the just and equal half of ail sums of money, goods and gear, whether heritable or moveable, which the said James Strachan should happen to conquest and acquire during the said marriage; and the said James Strachan became bound to satisfy and pay these provisions at the first term following his death, and that of Katharine Dunbar his spouse, with annualrent and penalty,’ &c.
James Strachan having died insolvent, his only son Ludovick Strachan adjudged the estate for security of the said sum of 18,000 merks; and, in a ranking and sale, it was objected by the other Creditors, that he could draw nothing till his father's debts were paid.
“The Lords found, that the clause imported only a provision of succession.”
It was observed, That the words ‘to satisfy and pay’ seemed to be improperly applied in this contract. With regard to the conquest to which they are applied, as well as to the liquid sum, they cannot be taken in their proper sense; but must mean only a provision of succession. And if the words must be confined to this sense with regard to one of the articles, a Judge cannot take upon him to give them a more extensive sense with regard to the other; especially where the consequence of such interpretation would be to put a gratuitous creditor upon an equal footing with one for a valuable consideration.
Fol. Dic. v. 4. p. 188. Sel. Dec. No 64. p. 84.*** The Faculty report of this case is No 105. p. 996., voce Bankrupt.
