Lydia Douglas, and her Husband, v. The Trustees of Sir Charles Douglas
Date: 7 February 1792 Case No. No 38.
A father who had granted a provision to his daughter, having in an after deed inserted the condition, that if she married a certain person the provision should be void; effect was given the condition. But this was reversed on appeal.
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By a deed of settlement, Sir Charles Douglas conveyed to certain Trustees, for behoof of his younger children equally, of whom Lydia was one, considerable sums of money, and other property.
He afterwards executed a codicil, containing the following condition:
“That if my daughter Lydia hath already married Richard Bingham, son of the Reverend John (put by mistake for Isaac) Moody Bingham, or any other son of his, in such case or event, she shall not at any time derive any benefit or advantage from my said settlement.”
Before Sir Charles' death, when this codicil came to the knowledge of his daughter, she was already married to Mr Bingham. She, however, had not been ignorant of her father's disapprobation of the match; which, notwithstanding, was universally allowed to be a suitable one.
Of the last mentioned deed she and her husband instituted a reduction, in order to set aside the irritant condition, and restore her to the benefit of the former settlement. In support of this action it was
Pleaded; The condition in this case inferred a total forfeiture of the only provision given; and yet it must be admitted that the match was not unsuitable. The benignity and the justice of our law will ever reject such conditions, as being not only contra libertatem matrimonii, but also contra pietatem parentis.
Thus Lord Stair says; Such conditions are “void, as against the freedom of marriage, which the natural affection of parents obliges them not to violate;” b. 1. tit. 3. § 7. And Lord Bankton; Clauses to that effect “are rejected by our law, and the provision subsists notwithstanding the children marry without such consent, especially if they marry suitably;” b. 1. tit. 5. § 29. In like manner Mr Erskine, b. 3. tit. 3. § 85. And to the same effect are a variety of decisions in Dictionary, h. t. though in some cases, when children had been previously provided, such conditions annexed to additional provisions were sustained. Also 9th February 1774, Graham contra Bain, No 36. p. 2979.
Besides, it is to be remarked, that the marriage had taken place before the condition was made known to the parties, and it ought not to be permitted to operate as a snare.
If indeed the father had not bestowed any provision at all on his daughter, no remedy perhaps would have been found; but when he has himself confessed the extent of his natural obligation to provide, this ought not to be Frustrated by a capricious or unnatural condition, which therefore must be held pro non scripto.
Answered: If the condition annexed by a father to the provision of his child be, that she shall marry a particular person, or not marry at all, it is invalid, as beyond the limits of parental authority; and it is to such cases as these, that the opinions and decisions quoted on the other side are applicable.
But a negative upon a daughter's choice is a power that belongs to a father, which, though it may sometimes be capriciously exercised, it would be pernicious to abolish. Such was the power assumed by the father in the present instance, in which there appears nothing contra bonos mores, or really contra libertatem matrimonii.
The Lord Ordinary reported the cause. The Court were unanimously of opinion, that the condition ought not to be effectual, as being contra libertatem matrimonii; for that the children having a natural right, and the father having defined what he considered as a reasonable provision, this was not to be defeated by the adjecting of an unreasonable condition.
It was also considered as a circumstance of importance, that the codicil was not communicated to the daughter before the marriage. But little stress was laid upon the misnomer above mentioned, though founded on by the pursuers.
The Lords reduced the codicil.
Reporter, Lord Dreghorn.Act. M. Ross.Alt. Abercromby.Clerk, Home.
Fol. Dic. v. 3. p. 160. Fac. Col. No 205. p. 431.
*** This cause was appealed, and the House of Lords reversed the judgment of the Court of Session.
