Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CONQUEST.
Subject_3 Where Conquest-lands have been sold, the jus representationis takes place upon the price.

Mary and Jean Russels
v.
John Russel

Date: 12 February 1779

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[Fac. Coll. VIII. 147; Dict. 3072.]

Justice-Clerk. Although it were granted that the father might have settled his estate on the eldest heir-portioner, with burdens to the other heirs, yet the present case is different; for the father has limited himself, by the marriage-contract, not to do any fact or deed to alter the course of succession. Here he has done more: he has settled the estate on the second son of a younger daughter: if this is lawful, what is the use of such clauses in marriage-contracts?

Monboddo. Many decisions are quoted on either side; but I would determine every cause on its own circumstances. There is a distinction between the lands and the conquest, which consists of money. By heirs is meant heirs one or more. The lands, in the present case, must go to heirs-portioners; and the father cannot prefer one daughter to another. As to the conquest, there is more difficulty: there the father has a power of division; but it is another question, whether he can pass over the heirs of the marriage altogether.

Gardenston. There is a special clause, limiting the power of the father; and therefore he cannot disappoint the heirs.

Kennet. The father has not made a settlement of any part of the estate on the heirs of the marriage; but he has bestowed it on the second son of a younger daughter.

Braxfield. When the settlement is an heir's, the father may make a distribution: his powers are discretionary but not arbitrary. But the great difficulty here is, that he has settled the estate on the younger son of the younger daughter.

Covington. I do not think that the clause in question prevents a distribution by the father: but here the father has given nothing to his daughters; for an alimentary provision during life is nothing in respect to an estate.

Kaimes. Here is an example of the bad effects of a man tying himself down by a marriage-contract: had the father been free, the distribution might have seemed reasonable; but, unhappily, he was bound, and could not do what was reasonable.

On the 12th February 1779, “The Lords found, that, by the failure of the issue-male of the marriage, the jus crediti, under the marriage-contract, was vested in the daughters of the marriage, as heirs-portioners and of provision, and of which it was not in the father's power to deprive them by any voluntary gratuitous deed: and found that the after-settlement, executed by William Russel, was in defraud of the obligations in the marriage-contract; and therefore reduced the same;” adhering to Lord Covington's interlocutor.

Act. W. Baillie. Alt. J. M'Laurin.

Braxfield. Here is a special provision of lands to the heirs of the marriage, and a like provision of conquest. Part of the special provision of lands was sold by the father. This is a contravention. The value, coming in place of the lands, must go to the heirs who would have had the lands: other lands were purchased during the marriage, and afterwards sold. I think that the same is the rule as to them: as long as the marriage subsists, there is no jus crediti; but the period of the dissolution of the marriage is the time for ascertaining the extent of the conquest. If the father dissipates the conquest, he is liable in warrandice,—purchasers will be safe, but not gratuitous disponees. The action of damages arising from the warrandice will lie at the instance of the party who suffered the damages,—that is, the heir of the predeceasing child, as well as the child itself. The title to be made up by the heirs of conquest, in the marriage— contract, must be a service. Such a title, it is admitted, might be made up; and I do not know what other title could be made up. There is a difference between making up titles to a provision, and making up titles to a sum provided. A jury serves upon no other title but the marriage-contract: if so, it follows that the jus representationis must take place. If the mother must have made up titles by service, the child may. Besides, by the L. 102, de Condit. et Demonst. under the word child, used in this marriage-contract, grandchild may be understood.

Covington. I agree as to the first point, which indeed exhausts the cause. A general service would have been proper as a title; but I do not think that such general service would have carried moveables. The Roman law made no distinction between heritable and moveable; but the case is different with us. A general service cognosces heirs to be heirs, but it gives no title. It would not be sufficient to authorise the exacting of payment: confirmation or special service would be necessary to complete title.

Justice-Clerk. The grounds of law laid down by Lord Braxfield are just. There is no such thing as a conveyance to heirs whatsoever, while the father is alive: if there were, the subject might be conveyed by them; but the succession cannot open to them, because the father is fiar.

On the 9th March 1779, “The Lords found that the heir of the body of Agnes, the predeceasing daughter, has a right jure representationis.”

Act. Ilay Campbell, J. M'Laurin. Alt. W. Baillie, D. Rae. Hearing in presence.