Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

Richard and Mary Dicks
v.
Lindsay and Others, Trustees of Bailie Dick

Date: 21 December 1776

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

CONTRACT OF MARRIAGE.

Robert Dick, dyer in Jedburgh, in his contract of marriage with Margaret Ainslie, disponed to the children of the marriage, which failing, to his heirs and assignees, the hail heritable and moveable subject that should pertain and belong to him at his death. At this time, Robert Dick had a small stock, and his wife the liferent of four acres of land, as the widow of a former husband.

Of this marriage there were two children, Richard and Mary, and their father, after acquiring a fortune of about £3000 sterling, entered into a second marriage, but of which there was no issue.

Richard, the son, proved a wild dissipated lad; begun as a packman; twice enlisted as a soldier; disobliged his father in many instances; and at last married without his consent; and prospered in nothing.

Mary married Thomson, who turned out in bankrupt circumstances.

By this means, old Bailie Dick, the father, became unhappy. He saw his son worthless, and unable to provide for a family of six children; a prey to company; in debt, both as principal for himself, and as cautioner for his brother-in-law Thomson. He saw his daughter Mary married to a bankrupt, also with a family; and no prospect of any better fortune.

He took a resolution therefore to settle his estate, which consisted of heritage and bonds, bearing annualrent, upon trustees. In the first place, To pay hi* debts and funeral charges; 2dly, To pay the provisions to his wife who survived him; 3dly, To pay the provisions made, or which he should make, to his son and daughter, and their families; and, 4thly, To implement any legacies or other deeds which he might execute. And, of the same date, by two separate bonds, he settled an alimentary annuity of L. 30 upon Richard, an annuity of L. 3 upon Richard's wife, and secured the remainder of his estate for behoof of Richard's children. The annualrents for their education, and the stock payable at majority and marriage, for their patrimonies, to fall to Richard himself in case of their death; and to Mary he gave an annuity of L. 2: 10s. yearly, and L. 10 to her children.

Of these settlements, Richard and Mary brought a reduction as in fraudem of the contract of marriage. And, upon advising, the Lords repelled the reasons of reduction, and assoilyied, (21st December 1776.)

As to the contract of marriage in general, they were of opinion, that it was of a kind which gave the children less of a jus crediti than any that had occurred. It contained not a special provision of a sum, or any particular subject; neither was it a provision of conquest: in both of these, particularly in the first, children have a jus crediti; but the provision here, was only of what Bailie Dick should be worth at the time of his death; so that, until that happened, they were not creditors for a farthing. In such a contract as this, the provision was not to the heir of the marriage, but to the children of the marriage, that is, to them and their families. A rational deed, therefore, securing that provision in that channel, was a just, nay, a laudable deed, and subject to no challenge. The behaviour of the son more than justified the step which his father had taken to secure his grandchildren from starving. It was a proper exertion of the patria potestas; and, should the son now prevail, he and his children would be ruined, and the sole benefit redound to his creditors, who were by no means entitled to any favour, being persons who seem to have ministered to his excesses; or, at least, lent to an apparent heir, in hopes of being repaid at his predecessor's death.

And as to Mary, her plea was untenable; for, at any rate, it was clear, take the case as you pleased, that the power of division betwixt her and her brother remained with the father.

It appeared that Richard was a weak thoughtless creature; and that, in this very process, his own wife, for the sake of her children, took part against him. It appeared, that, previous to his father's death, Thomson and Richard had entered into a contract to stand by one another, and to divide the inheritance; and that the action was carried on at the expense of both their creditors; so that, upon the whole, it was evident that, if the prosecution succeeded, the creditors would be the sole benefiters, and that Richard and his family were ruined.

The case of Douglas of Tillywhilly was quoted and reprobated; but the case of Thomson of Cummanhead, decided anno 1772 was quoted with approbation.