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.
Subject_2 PRESCRIPTION.

The Younger Children of Monteath of Keys
v.
The Trustees of the Duchess of Douglas

Date: 22 November 1776

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

In different provisions by a father to children, the last is supposed to cancel the first. So argued from the decision, Emilia Belsches against Sir Patrick Murray, New Coll., 22d December 1752. But this is a mistake. That decision proceeded upon this principle, That, as there was no natural obligation on Sir Patrick Murray to have provided Emilia Belsches, it was to be presumed that, by the second provision, he had done all he intended for her, and that he had forgot the first legacy, otherways he would either have included it in the bond or cancelled it. But it seems to be a principle in law, that, where the person who granted the provision is under a natural obligation to provide, both are held good, unless the one deed expressly cancel the other. This, however, is denied: and, by many, the above decision is held to be a standard rule, according to which all such cases fall to be determined, where it does not Clearly appear that a twofold provision is meant. And, as to affection of parents to children, this no doubt will operate so far as to support a claim to a moderate and reasonable provision; but, in every other view, the natural and fair presumption is, that the last deed expresses the whole burden which the defunct intended to lay upon his heirs, unless some strong indication to the contrary shall appear.

Memorials, Irvine of Drum against Earl of Aberdeen, &c.

The above mentioned decision, in the case of Belsches, was mentioned in the papers, The Younger Children of Monteath of Keys against The Trustees of the Duchess of Douglas. The Duchess's sister having been married to Monteath, senior, the Duchess entered into a contract with Monteath, father and son, and her sister, to save the family, by old Monteath's disponing the estate to his son, and the son relieving him of his debts, and the Duchess and he giving the father an annuity; an annuity also to Mrs Monteath after her husband's death, and L. 1000 to provide younger children: besides all which, the Duchess bound herself to pay further provisions to the younger children. A few months after, the Duchess made a final settlement of her affairs, and left legacies to the Monteaths: in this settlement she recalled all former settlements. The younger children claimed on both deeds, and pleaded, that the first deed, being by way of contract, could not be revoked, and that in fact it was not revoked. It was no settlement of the Duchess's affairs; and therefore, unless the Duchess had declared that they were not to claim under both deeds, they were entitled to do it: her intention probably was so, but she had not done it. " The Lords, on report of Lord Monboddo, found, That the younger children were not entitled to claim the benefit of both deeds, but had it in their option which to accept of.” In reasoning, they put the interlocutors upon the Duchess's intention, and that she was under no natural obligation to provide for them.