Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XII.
The onerosity of Provisions made in contracts of marriage.
Janet Duncan v. John Sloss
Date: 8 February 1785 Case No. No 101.
A provision to a wife, by antenuptial contract, ineffectual so far as exorbitant.
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By an antenuptial contract of marriage, John Sloss settled a large jointure on Janet Duncan his second wife; for payment of which, after his death, the sued his heir, a child of the first marriage, on whose provisions it encroached.
Pleaded for the defender: The jointure in question is exorbitant, being greatly disproportionate to the means of the granter; and therefore, quoad the excess beyond its rational or just amount, it is to be postponed to the claims, as well of his children by the prior marriage, as of his other Creditor's; Gosford; Stair; 19th January 1676, Stansfield contra Brown, No 73. p. 954; Kllkerran, voce Bankrupt, 26th July 1744, Creditors of Sir James Campbell, No 103. p. 988. Fac. Col. p. 225. 12th July 1758, Noble contra Dewar, voce Tailzie; Erskine, p. 564. Fountainhall, 23d March 1683, Gartshore contra Brand, No 102. infra.
Answered: The authorities quoted relate to postnuptial contracts alone; for it has not yet been found, that provisions to wives, contracted for by antenuptial deeds, are not onerous debts in the fullest sense.
The cause was reported by the Lord Ordinary; when
The Court restricted the jointure in question to a rational extent, in the same manner as if it had been granted in a postnuptial contract.
Lord Reporter, Gardenston.Act. W. Craig.Alt. M. Rofs.Clerk, Home.
Fol. Die. v. 3. p. 50. Fac. Col. No 197. p 310.
