Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Creditors of Kinminity
v.
Lady Kinminity

Date: 20 January 1756

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[Fac. Coll. No. 177.]

By contract of marriage the lady got a locality provided to her of certain lands, and by the acceptance thereof the husband takes her bound to pay to the heir-male of the marriage, (upon whom the estate was settled by the contract of marriage,) but to none of the husband’s other heirs, 200 merks and 2 chalders of victual yearly. The husband, the party-contractor in this contract, died bankrupt, leaving a son of the marriage, who was charged by the creditors to enter heir to his father, but, having renounced, the creditors adjudged the estate. The question was, Whether or not that adjudication carried this provision made to the heir?

The question resolved in this, Whether or no the heir could take this provision in his favour without representing his father?

It was said for the lady and heir,—That he could; because this was a settlement made upon him by a third person, viz. his mother, which, therefore, he could take as hæres designative to his father, without actually representing him; that the father, by granting the full locality to his wife, was denuded of so much of the feudal right of the estate, and it was no concern of the creditors what personal obligations she became liable to.

On the other hand, it was said,—That as the husband took the wife bound to give this provision to his heir in the very deed by which he gives her jointure, by the acceptance whereof she is bound to make the foresaid annual payment, it is to be considered as the deed of the husband making a provision in favour of his own heir, to take place at his death, which, by the established practice now, is always understood to be a succession; that this is a plain restriction of the jointure, differing only in the form of words, and the reason of the difference is, that, as she had a locality, it would have been inconvenient to have broken the farm, so as to take from her the precise sum it was agreed she should give to the heir; and therefore, instead of that, leaving her locality entire, they laid her under a personal obligation. But this was the opinion of the President single; all the rest of the Lords were of the other opinion.

[See Dict. tit. Personal and Transmissible, p. 77, and two decisions there quoted, 16th November 1665, Watt against Russel, and 14th June 1667, Boyd.]