Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XIII.
What understood to be sufficient implement.
Alexander Ewing v. Walter Ewing, and Others
Date: 26 February 1799 Case No. No 122.
When a father, in his son's contract of marriage, dispones lands to him, and the heirs of the marriage, the son may grant national provisions to the younger children of the marriage; but farther bequests to them, and provisions to grand-children, whose parents are alive and provided for, are reducible as gratuitous, at the instance of the heir of the marriage.
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Alexander Ewing, in his second son Robert's contract of marriage, disponed certain lands to him and the heirs of the marriage; whom failing, to his own nearest heirs and assignees.
Robert had seven children of the marriage.
Alexander, the eldest son, was unfortunate in trade, and on bad terms with his father, against whom he raised an action, and on the dependence of it, an inhibition, on account of a claim, with regard to which a balance of L. 113 was ultimately found due to his father.
Robert sold the lands to Walter, one of his younger children, for L. 2500, being the price at which he had before unsuccessfully exposed them to public sale.
By a trust-settlement, to take effect at his death, he granted provisions to his younger children, amounting to L. 900, and upwards of L. 300 to some of his grandchildren by them. He had, besides, given L. 100 to one of his younger children during his life, and he was debtor in L. 200, which he had become bound to pay in the marriage-contract of one of his daughters, who was to get no part of the L. 900.
He left L. 400 to his eldest son in liferent, exclusive of his creditors, and to his children in fee; he further discharged the debt of L. 113 due by him, and he had previously given him L. 100. The residue of Robert's fortune, was directed by the settlement to be divided among five of his younger children.
After his father's death, Alexander brought a reduction of the sale as collusive, but the defender was assoilzied.
And the trustees having raised a multiplepoinding for division of the funds in their hands, which amounted to L. 2300, Alexander contended, that he, as an heir of provision, could not be gratuitously disappointed; Ersk. b. 3. t. 8. § 38; 8th December 1790, Gordon against the Trustees of Gordon, No 142. p. 13028; 28th July 1778, Spiers against Dunlop, No 141. p. 13026.: That his father, in the amount of the special provisions to the younger children, had exceeded the discretionary powers vested in him; and that the residuary bequests to them, and provisions to grandchildren, whose parents were alive and provided for, were reducible as wholly gratuitous.
It was answered, That it is a delicate matter to controul the discretionary power admitted to be vested in the father in such cases, and that in the whole circumstances, the settlement should be in omnibus supported.
The Lord Ordinary reported the cause on informations.
The Lords “sustained the provisions contained in the trust-disposition executed by the deceased Robert Ewing, in favour of his five younger children, amounting to L. 900 Sterling; and likewise the provision of L. 200 of tocher to Mary his younger child, upon her marriage; but found it was ultra vires of the said Robert Ewing to burden his eldest son with any provisions to his grandchildren, or to dispose of the residue of his estate and effects to his prejudice.”
Lord Ordinary, Glenlee.Act. Baird.Alt. Hope.Clerk, Menzies.
Fac. Col. No 115. p. 261.
