Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XII.

The onerosity of Provisions made in contracts of marriage.

John Watson of Muirhouse, and other Creditors of Andrew Scot,
v.
The Younger Children of the deceased Robert Scot, Merchant in Glasgow

Date: 13 June 1760
Case No. No 100.

A man became bound, in his contract of marriage, to provide a certain sum to the beirs whatsoever. The eldest son succeeded and made up titles to the whole estate. Afterwards when the son's funds had become less than his debts, tho' no diligence had been done against him, he executed a bond of provision in favour of his brothers and sisters, on the narrative that his father had not provided for them. They were infeft, and in a ranking they were preferred according to the date of their infeftment:

Click here to view a pdf copy of this documet : PDF Copy

By contract of marriage in 1705, between Robert Scot and Agnes Stark, he provided her. in a liferent annuity of 509 merks, to be uplifted out of certain tenements. This annuity was to be restricted to 300 merks, in case of bairns existing at his death; or if they should all happen to die before majority or marriage,. her full provision was to take place. He also became bound “to provide, in favour of the heirs whatsoever to be procreate of the marriage, the sum of L. 8000 Scots: And in implement thereof, pro tanto, he provided to the said heirs the foresaid tenements of land, and he also provided to his heirs whatsoever to be procreated of the said marriage, the fee of the haill conquest; and bound and obliged himself, and his foresaids, that he should do no fact or deed to hurt or prejudge his said future spouse, or the bairns to be procreate of the said future marriage, of their respective provisions of liferent and fee above written.”

Robert Scot died in 1725, and left a son, Andrew, and five younger children, then infants.

Andrew Scot made up titles to his father's heritage, and was infeft as heir to him, without objection made by the younger children.

In 1740, when (as it afterwards appeared) Andrew Scot's debts exceeded his effects, but no diligence had been done against him, he granted a bond of provision to his brother Robert, and four filters, for 3400 merks, of which his brother was to have 1000, and each of his four filters 600 merks.

The bond bore this recital:

“Forasmuchas my said father died a considerable time ago, without making any settlement of his affairs, or provisions in favour of his other children, and they being still unprovided for by me; and reason and equity requiring, that a suitable provision were made to them out of their said father's subjects, to which I have succeeded as eldest lawful son and heir to him; therefore, and for the love, favour, and affection I bear to them,” &c.

Upon this bond infeftment was taken about two months after its date.

In a ranking of Andrew Scot's creditors, this bond was objected to upon the act 1621, as haying been a gratuitous deed, granted to conjunct persons, after he had contracted debts beyond the value of his effects, in prejudice of his lawful and onerous creditors.—It was answered, That the bond was onerous and effectual, as having been granted in security or satisfaction of the younger childrens share of the provisions in their father's marriage contract, and when no diligence had been done against the granter.

Pleaded for the creditors, Imo, The children had no right to any share of the provisions in the marriage contract 1705. The sum of L. 8000 was thereby heritably secured on certain tenements, and provided to the heirs whatsoever of the marriage; which is a technical term, admitting, of no ambiguity in a settlement of succession to lands, but importing, that the eldest son is called first, in exclusion of all the younger children, 2do, The bond in question was not granted in implement of the provisions in that contract, had any been thereby made for the younger children. Its narrative makes no mention of the contract; but, on the contrary, bears, that they were unprovided by their father, and that the granter had succeeded as heir to him; and that therefore he granted it for love and favour, which is the strongest description of a gratuitous deed. And, 3tio, Supposing the bond had been given in implement of those provisions, and that the same had been due; yet, as it proceeded from the voluntary act of the debtor, in order to give his brother and filters a preference to his other lawful creditors, when they were not demanding it, and when he knew his insolvency, it must be considered as an act of fraud, which the law cannot support.

Answered for the younger children, 1mo, Where sums of money, whether heritable or moveable, or burgal tenements, are provided in the marriage contracts of mercantile people, to heirs of the marriage, the whole children or bairns are thereby understood to be called as heirs of provision, though the heir of line would be entitled to succeed in such a settlement of a land estate, where the representation of a family may be supposed in view; February 1727, Macdoual. Stewart' s answers, voce Heirs of Provision, (voce Provision to Heirs and Children.) But here the parties to the contract have further explained their intention of calling the whole children, by the restriction of the wife's annuity in case of bairns existing, and the father's obligation to warrant to the bairns their provision of fee; and when heirs and bairns are called in such a contract, the clause is understood to be exegetic, and to call the whole bairns; 13th February 1677, Carnegie against Clark and Alcorn, Stair, v. 1. p. 504. voce Provision to Heirs and Children; 17th February 1736, Ranken*.

2do, The narrative of the bond sets forth nothing but what was true; only it does not tell the whole truth, or that by the contract the younger children were entitled to about 10,000 merks, instead of 3400 secured to them by this bond. Supposing the granter to have overlooked the contract designedly, it can afford no objection to the validity of the bond, when it still appears, that he was debtor to them in a much larger sum by that contract, which he must be presumed to have had in view when he granted this security.

And, 3tio, Notwithstanding the act 1621, it is competent to an onerous creditor, at any time, to take payment of a debt justly due to him, or to take a conveyance of any subject in security of it, although the debtor be then insolvent, if he has not been interpelled by prior diligence; 31st January 1627 Scougal, No 1. p. 879. Nor can this be considered as a security voluntarily gil ven by the debtor, as he was in law and justice bound to have given it, the subjects on which the bond is granted being the same with those provided in the contract, of which the children could have compelled their brother to denude in their favour, as far as their shares extended; so that he truly held the same only in trust.

* Examine General List of Names.

‘The Lords repelled the objections to the bond, and found the younger children entitled to be ranked on their interest produced in their due course, conform to the date of their infeftment.’

For the Creditors, Lockhart. Alt. Ferguson. Clerk, Kilpatrick. Fol. Dic. v. 3. p. 49. Fac. Col No 220. p. 404.