A provision to a child in a general settlement executed by the father of his whole effects upon his children, was found incompatible with the claim of legitim.
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George Henderson, by his marriage-contract, made certain provisions in favour of the children of the marriage. He afterwards, having acquired many additional funds and subjects, executed a total settlement of his effects on the children then existing, James, John, Margaret, and Elizabeth; but, in that deed, which was not delivered, he reserved a power of revocation.
Several years posterior to its date, he conveyed to his three elder children a certain debt secured by heritable bond, “in consideration of their exonering and acquitting him not only of the provisions conceived in their favour by his contract of marriage, but also of whatever they could ask or claim by or through his marriage with their mother, and communion thereby formed, or by and through the dissolution of that communion by her death; and that whether conquest, legitim, or dead's part, natural, or bairn's portions, or any provision heretofore conceived in their or any of their favours.” They accordingly granted to him a discharge and renunciation “of the provisions in the contract of marriage, and of any other provisions, substitutions, or destinations of succession, conceived in their favour, and of all claims arising from the dissolution of the marriage, or the death of their father, whether of dead's part, conquest, or legitim.”
Upon George Henderson's death, the total settlement in favour of his whole children was found unrevoked in his repositories.
Elizabeth, however, his youngest child, having no share in the conveyance of the heritable debt, and not having concurred in the discharge, laid claim to the whole of her father's succession, challenging the office of executor exclusively of her brothers and sister, and insisting in an action of declarator of her right. In a process of advocation from the Commissaries, conjoined with this declarator, she
Pleaded, By their acceptance of the disposition, and by their discharge and renunciation, the other children have abandoned every claim, not only arising from their father's and mother's contract of marriage, from the dissolution of the marriage, or from the death of their father, but likewise from any “provision heretofore conceived, and of any substitution or destination of succession in their favour.” Thus, then, they are excluded from the benefit of the settlement formerly made in their behalf, as well as in that of their youngest sister, and consequently she is entitled alone to claim under that deed.
If, however, their renunciation were not understood to have the effect of precluding the claims of the other children under the deed of settlement, still it would confessedly bar their pretensions to any part of the legitim at least, which, therefore, must wholly belong to her; Erskine, b. 3. tit. 9. § 23. For though, by the last mentioned deed, a particular provision is conceived in her favour, yet this does not infringe her right to the legitim. A posterior voluntary provision to a child is not interpreted to be in satisfaction of a prior one; Stair, b. 1. tit. 8. § 2. in fine. Much less is it to be construed as coming in place of the child's legal claim to legitim; Dict. voce Presumption. Nothing, therefore, less than an explicit declaration, could have that effect; nor is the claim barred by the generality of the settlement, as it is limited in express terms to the moveable effects ‘belonging to him at his death,’ which words can be properly understood only of the dead's part.
Answered; The elder children have indeed renounced every claim which at the time was competent to them against their father, as of legitim, of provision under the marriage-contract, or of any other provision then effectual in their favour. But, as their father's deed of settlement was undelivered and revocable, no claim could accrue to them from it until his death; and consequently prior to that event, there existed not any right to be the subject of renunciation. Such a claim, it is true, has supervened on his death, but is long posterior to the discharge and renunciation.
With respect to the legitim, it is to be observed, that the deed of settlement comprehended the whole effects of George Henderson, heritable and moveable; as, notwithstanding the criticism on the phrase, “belonging to me at the time of my decease,” is plain from the terms of the deed, agreeably to the interpretation of the Court in a similar case; Riddel contra Dalton, 28th November 1781, No 51. p. 6457. The subject of the legitim was therefore disposed of, as well as the dead's part. As Elizabeth cannot both approbate and reprobate this deed, though she may do either, so, if she claim any benefit from it, she must resign her pretensions to the legitim, which are thereby precluded; or, if she insist on the latter, she can no longer challenge an interest in the former, so much more valuable to her.
The Court were of opinion, That as the deed of settlement was not delivered, but remained in the granter's repositories at the date of the discharge and renunciation, this could not be understood to comprehend the effect of that deed. They further considered the settlement, being a total one, as incompatible with the claim of legitim, however consistent with this claim a particular provision might have been.
The Lords, therefore, “assoilzied John, James, and Margaret Hendersons from the claims of Elizabeth.”——See Presumption.
Lord Ordinary, Kennet.For Elizabeth Henderson, Maclaurin, Rolland.For the other Children, Ilay Campbell, G. Fergusson.Clerk, Colquhoun.
Fol. Dic. v. 3. p. 384. Fac. Col. No 59. p. 94.
