Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XV.
Can provisions in favour of Children in a Marriage-contract be disappointed by deeds of the Father?
James Thomson and his Creditors v. His Children
Date: 11 February 1762 Case No. No 135.
A man, who, in his contract of marriage, has provided his estate to the heirs of the marriage, can he alter that provision, where the heir turns out a bankrupt?
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James Thomson, in his marriage-contract with Janet Greenshiells, anno 1712, “provides the heirs of the marriage to succeed him in the lands of Northcumberhead, and in all other lands, heritages, sums of money, and others he shall happen to acquire during the marriage.”
James Thomson being industrious, and living long, acquired a considerable fortune. But his eldest son, being idle and profligate, contracted debts, and became bankrupt; which induced the old man to execute a disposition of his effects in liferent to his son James, the heir of the marriage, and to his children in fee. After the granter's death, the heir's Creditors brought a reduction of this settlement, as in defraud of the marriage-contract, providing the estate to their debtor, the heir of the marriage. The Court repelled the reason of reduction, and assoilzied the defenders. And what chiefly moved the Judges, was the insolvency of the heir of the marriage. For though, according to the strict interpretation of common law, he was entitled to the fee, yet, in a contract of marriage, intended for the benefit of those who should spring from the marriage, it could never be the intention of the contractors to secure the estate to creditors, in case of the heir's bankruptcy, and there-by to rob all their descendants. The case was put, of the heir being forfeited for treason; and it was agreed by all the Judges, that he could be removed from the succession. There is par ratio in the present case.—See Principles of Equity, Edit. 3. vol. 1. p. 263.
