Deeds in favour of Children or near Relations, whether presumed in satisfaction of former revocable settlements?
Margaret Mathieson v. John Mathieson
Date: 20 November 1766 Case No. No 125.
An after-provision to children imputes in former provisions, though not purified at its date.
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John Mathieson elder, being possessed of an estate limited to heirs-male, became bound, by his marriage-contract, to pay “to the eldest or only daughter to be procreated of the marriage,” the sum of 6000 merks, in the event that there should be no heir-male of the marriage; or, if such heir-male should exist and succeed to the estate, the sum of 4000 merks.
In either event, he became bound “to maintain and educate the eldest or only daughter to be procreated of the said marriage, conform to her degree and quality, till she be married.”
Four daughters existed of the marriage, but no male issue. During its subsistence, Margaret, the eldest daughter, was married; and John Mathieson became bound to pay her 3000 merks, without any reference to the obligation to his own contract of marriage.
The estate having devolved on John Mathieson's son by a second marriage, an action was brought by Margaret for the 6000 merks provided to the eldest or only daughter of the first.
Pleaded for the defender, 1mo, Eldest or only daughter must be understood conjunctively; and, therefore, the pursuer is not entitled to the provision as eldest daughter, since she is not only daughter also. The father was bound to aliment all his daughters equally; and yet the same expression is used in the clause of aliment, as in the clause respecting the 6000 merks.
2do, The 3000 merks, already paid, must impute pro tanto in the 6000 merks, if the provision shall be found to take place.
Answered for the pursuer; The obvious meaning of the terms, eldest or only daughter, is, that the whole 6000 merks should be due to her, whether there should be more than one daughter or not. And so the father understood the clause respecting the daughter's aliment; for, though he maintained his eldest daughter in a suitable manner till her marriage, he dismissed the rest without any provisions.
To the second; The presumption, debitor non præsumitur donare, does not apply. The pursuer was not creditor in the 6000 merks, at the time the 3000 merks were provided. Her father's first marriage still subsisted. Still there might have been heirs-male of the marriage; and, in that event, the 6000 merks were not due.
“The Lords found, that the pursuer was a creditor for the 6000 merks; but that the after provision of 3000 merks must impute in payment thereof.”
Reporter, Kennet.Act. Crosbie.Alt. Cosmo Gordon.
Fol. Dic. v. 4. p. 123. Fac. Col. No 44. p. 271.
