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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Leod v. Leslie [1867] ScotLR 5_275 (21 February 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0275.html
Cite as: [1867] ScotLR 5_275, [1867] SLR 5_275
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SCOTTISH_SLR_Court_of_Session
Page: 275↓
Court of Session Inner House First Division.
v.
Facts:
A bound himself, in antenuptial articles of marriage, to convey a certain estate to himself and the heir-male of the marriage, and also to secure a sum of money to the younger children. A postnuptial contract of marriage was executed giving effect to these stipulations. A died, and his son took the estate. A's executry being insufficient to satisfy the provision to the younger children, held ( Lord Deas diss.) that the son, as heir of his father, and so liable for his father's debts, was bound to implement his father's obligation to the younger children, intra valorem of the estate to which he succeeded.
Facts:
An heir taking the heritable estate of his father executed a bond for £5000 in favour of his sister, she granting in return a discharge of all claims against her father's estate. It was subsequently discovered that the sister was entitled, under her father's marriage-contract, to a provision of £16,000. Held that the sister was not entitled to decree for the £16,000 until she should relieve the heir and his estate of the obligation for the £5000.
Hans George Leslie of Dunlugas died on 4th May 1856 survived by two children, Hans George Leslie the present defender, and Mary Leslie or M'Leod, who was married to the pursuer Gordon M'Leod of Lochbay in 1854, and died in 1861. The deceased Mr Leslie left a trust-disposition and settlement, dated 24th April 1856, whereby he conveyed to trustees his whole heritable and moveable estate, including his estate of Dunlugas. The trust-purposes were, inter alia, first, for payment of his debts, deathbed and funeral expenses, and the expenses of executing the trust; and, secondly, for securing a provision of £5000 sterling to and for behoof of the said Mrs Mary Leslie or M'Leod, the truster's only surviving daughter, in liferent, for her liferent use only, and her children born of her said marriage, or any future marriage, in fee; whom failing, to the said Hans George Leslie, the truster's son; and for that purpose the truster directed his trustees to hold and accumulate the rents and profits of the lands thereby conveyed until the same, together with what should remain and be available of the truster's other estate, after satisfying the first purpose of the trust, should amount in all to a capital sum or provision of £5000 sterling; and then to set apart and hold, or invest, or manage the said capital sum or provision in such manner as that the interest or income thereafter to accrue or arise therefrom, after deducting the necessary charges of management connected therewith, might be payable by his trustees to the said Mrs Mary Leslie or M'Leod during her lifetime, at such terms or periods as they might think suitable; and the capital sum to be on her death, payable to the fiars as therein and after mentioned. Until a capital sum or provision of the amount foresaid should be formed and set apart, the truster directed his trustees, out of the rents of his lands or other income of his estate, to make payment of a free annuity of £200 sterling to his said daughter. By the third purpose of the trust, the truster, in so far as regarded his lands and other residue of his estate which might remain after his trustees should have formed and set apart the capital sum or provision of £5000 sterling, as directed under the said second trust-purpose, directed his trustees to convey and make over such lands and residue to the said Hans George Leslie, his son, and his heirs and assignees, whom failing, the truster's own nearest heirs, and that with all convenient speed after the said capital sum or provision should have been formed and set apart as aforesaid. The truster also declared that the foresaid provisions in favour of his said son and his said daughter respectively should be taken and accepted by him and her respectively in full of all claim of legitim, or bairn's part of gear, or portion-natural, or other share of his estate which might be competent through his decease. The estate actually left by Mr Leslie consisted of his estate of Dunlugas, estimated as of the free value of £28,000, and of about £1500 of free executry.
In October 1857 the defender Hans George Leslie raised an action of reduction of this trust-disposition and settlement, as having been granted on deathbed to his prejudice, as the truster's only son and heir, and on 15th January 1858, decree of reduction was pronounced in the action. Thereafter, in March 1858, the defender made up a title by special and general service as heir of his father, and as such was infeft in the estate of Dunlugas. Some communications passed about this time between the pursuer on the one hand, and the defender and his agent on the other, which finally resulted in the defender granting a bond for £5000 over Dunlugas, in favour of trustees for the pursuer and his wife and children. The bond, which was dated 31st May 1858, narrated the provision of £5000 to Mrs M'Leod's family, as contained in the late Mr Leslie's trust-settlement; the reduction of the deed at the instance of the defender; the defender's purpose, while availing himself of his right to challenge that deed as far as it conveyed heritage, of carrying into effect the wishes of his father with reference to the provision of £5000; and the agreement with reference thereto with the pursuer and his wife; and then the defender bound himself, his heirs, executors, and representatives whomsover, to pay to trustees named the sum of £5000 for the purposes specified, disponing the lands of Dunlugas in security. In consideration of this bond and disposition in security, the pursuer and his wife executed a discharge, dated 1st June 1858, whereby they discharged the defender and the trustees of the deceased Hans George Leslie, “and all others, the representatives of the said deceased Hans George Leslie, or the intromitters with his effects, of all sums of money or other effects which belonged or were due to the granters, or either of them, or which they, or either of them, could have asked or claimed out of the estates and affects of the said deceased Hans George Leslie; but also of all legitim, portion-natural, bairns' part of gear, executry, and every other thing which the said Mrs Mary Leslie or M'Leod, or the said Gordon M'Leod, qua husband and administrator-in-law of his said children, or otherwise, might ask, claim, or demand from the estate and effects of the said deceased Hans George Leslie, or in and through his decease, or the decease of Mrs Mary Ramsay or Leslie, his spouse, mother of the said Mrs Mary Leslie or M'Leod; and of every other claim or demand
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in any way or manner whatever, or in whatever capacity or character, from and against the said deceased Hans George Leslie or his estate, or trustees or representatives; but reserving always the granter's respective rights and interests under and in virtue of the said bond and disposition in security for the said provision of £5000, in respect of which the said discharge was granted, and which should not be hurt or prejudiced thereby.” In March 1863, the pursuer raised the present action for the purpose of enforcing his right under the marriage-contract of the late Mr Leslie and his wife, of the existence of which he had only recently, he alleged, become aware. The action was directed against Hans George Leslie, only son of the deceased Mr Leslie; the trustees of the deceased Mr Leslie; the trustees nominated in the bond and disposition in security dated 31st May 1858; the pursuer's children; and his marriage-contract trustees. The summons called for production of (1) an antenuptial agreement or articles of marriage, dated on or about 4th March 1820, entered into between the said deceased Hans George Leslie, on the one part, and Mrs Mary Ramsay otherwise Brebner, widow of the deceased William Brebner of Learney, afterwards spouse of the said deceased Hans George Leslie, on the other part; and (2) a postnuptial contract of marriage, dated on or about 25th March 1820, entered into between the said deceased Hans George Leslie, on the one part, and his wife, the said Mrs Mary Ramsay or Leslie on the other part.
The leading conclusions were for declarator that the pursuer's wife, now deceased, had sole and absolute right to a provision of £16,000 provided to the younger children of the marriage between the late Mr Leslie and his wife, and that that right was now vested in the pursuer; that the defender, as heir-male of the marriage between the late Mr Leslie and Mrs Mary Ramsay or Leslie, or as heir in special or heir in general of his father, was bound to pay to the pursuer the said sum of £16,000, with interest from Martinmas 1856, being the first term happening six months after the decease of the late Mr Leslie; and for reduction of the bond and disposition in security and the discharge dated in May and June 1858, “but that only in so far as the same can be held to exclude or prevent the pursuer from obtaining decree of declarator and payment in terms of the other conclusions above written, saving and reserving the said several writs, and all rights and interests under the same, in as far as it may not be necessary or expedient to have the said writs set aside and reduced as aforesaid.”
The defender's agent having, in reply to a demand by the pursuers' agent for production of the marriage settlements, stated that he was not in possession of any such documents, and that none such were found among the late Mr Leslie's papers, and the defender pleading that the pursuer was not entitled to decree in the action until the tenor of the deeds founded on by him had been proved in a competent action, an action of proving the tenor was brought by the pursuer in December 1863, and after various procedure in this action ( vide 3 Macph. 840), decree was pronounced on 2d June 1865. The antenuptial articles of marriage, of which the tenor was thus found proven, were executed by the late Mr Leslie and Mrs Mary Ramsay or Brebner, afterwards Leslie, on 4th March 1820, the latter party agreeing that her whole property should be be conveyed to her intended husband, and the latter agreeing to infeft his intended wife in a free annuity of £500, and to settle other provisions upon her. The articles of marriage contained also this provision—“and the said Hans George Leslie shall be farther bound to convey the lands and estate of Over and Nether Dunlugas and others to himself and the heir-male of the marriage in fee, and also to secure to the younger children of the marriage £16,000, and in the event of no heir-male being procreated of the said marriage, to increase the said sum to £20,000 sterling, payable at and against the first term of Whitsunday or Martinmas six months after the decease of the said Hans George Leslie.” On 25th March a postnuptial contract was executed by the parties, giving effect to the provisions in the articles of marriage. This deed, after narrating these articles, proceeded thus:—“Therefore the said Hans George Leslie hereby dispones and conveys to and in favour of himself and the heirs-male of this marriage, whom failing, to his own heirs and assignees whomsoever, heritably and irredeemably, all and whole the lands of Over and Nether Dunlugas,” &c. After sundry provisions in implement of Mr Leslie's obligations in the way of annuity and other payments to his wife, the deed continued— “Moreover, the said Hans George Leslie, in farther implement of the said marriage articles entered into betwixt him and his said spouse, hereby binds and obliges himself and his heirs and successors whomsoever, to make payment of the sum of £16,000 to the younger child or children that may happen to be procreated of this marriage, besides the heir succeeding to the said lands and estate of Dunlugas and others.” The pursuer now averred that while he and his wife were ignorant of the existence and tenor of these articles of marriage and postnuptial contract, the defender and his agent, or at least the latter, knew of their existence and import; or at least they knew that no such rights as those to which the pursuer and his wife were entitled under the said deeds were in the contemplation of the pursuer and his wife when they granted the discharge above-mentioned.
The pursuer pleaded (5)—The defender, Hans George Leslie, having, as his father's heir, succeeded to and been infeft in and taken possession of the lands and estate of Dunlugas and others, is bound by the terms of his father's marriage-settlements to satisfy and pay the said provision of £16,000 to the younger child or children of the marriage, or their representatives. (7) The acceptance by the pursuer Mr M'Leod and his wife of the bond and disposition in security for £5000, and the discharge granted by them in consideration thereof, as well as the arrangement under which the said deeds were accepted and granted, having been impetrated and obtained from them by fraudulent concealment and misrepresentation as condescended on, the pursuers are entitled to have the deeds under reduction set aside in as far as they import or operate as a discharge of the right and interest of the pursuer Mr M'Leod and his said wife and children in the provision of £16,000. (8) The said bond and disposition in security having been accepted, and the said discharge granted by the pursuer Mr M'Leod and his wife, and the arrangement under which the same were accepted and granted having been entered into while they were in ignorance of Mr and Mrs Leslie's marriage settlements, and of the said provision of £16,000, the said deeds, in as far as they can be held to import a discharge in exclusion of the present claim to the said provision, are reducible in respect of essential error on the part of
Page: 277↓
the said pursuer and his said wife. At least the said deeds are reducible in respect of essential error on the part of the said Mr and Mrs M'Leod, induced by the fradulent misrepresentation or fraudulent or undue concealment on the part of the defender Hans George Leslie, and his said agent, at least on the part of the latter. The defender pleaded—(1) The averments of the pursuers are irrelevant and insufficient in law to support the conclusions of the action. (2) On a sound construction of the marriage-contracts founded on by the pursuer, the defender is not liable for the sum claimed by the pursuers in this action, and was entitled to the lands of Dunlugas and others without incurring such liability. The defender does not represent his father, and is not liable for the sums sued for. (5) The pursuers are not entitled to make or enforce the claim made in the present action so long as the said bond for £5000 is in force; and, before enforcing said claim, they are bound to discharge the said bond, or to get it discharged, and to repay the sums paid under the said bond. (6) In any view, the said sum of £5000 must be imputed in part payment of any sum found due by the defender in this action.
On 29th June 1866, the parties put in this minute of admission:—
“The defender, Hans George Leslie, admits that the pursuer, Gordon M'Leod, and his late wife, accepted the bond and disposition in security, No. 11 of process, and executed and delivered the discharge, No. 12 of process, in ignorance of the antenuptial articles of marriage, and postnuptial contract of marriage as respectively found and declared by the extract decree of proving the tenor, No. 35 of process, and of their rights under the same; the said defender undertakes not to found upon or plead the said bond and discharge as being any bar to the said pursuer maintaining the rights of himself and his said wife under the said antenuptial articles of marriage and postnuptial contract of marriage. The defender further admits the averments in article 8th of the condescendence (relating to Mr Leslie having received payment of certain property belonging to his wife); and also, that the estate of Dunlugas, settled by the said articles of marriage, and conveyed by the said postnuptial contract of marriage, was, at the date of the late Mr Leslie's death, and still is, of the free value of £28,000.
The pursuers admit the averments in statement 3 for the defender (to the effect that the late Mr Leslie left only about £1500 of personal property, and no heritable property except Dunlugas) to be true:
And both parties renounce probation, except upon the question, Whether the defender is entitled to be restored against the obligations contained in the bond and disposition in security, dated 31st May 1858, set forth in articles 18 and 19 of the revised condescendence; or to have the sum of £5000 therein contained imputed in payment of any sum which the pursuers may be entitled to recover in this action.”
On 20th July 1866 the Lord Ordinary ( Jerviswoode) pronounced this interlocutor:—“The Lord Ordinary having heard counsel, and made avizandum, and considered the debate, with the closed record, joint minute of admissions, No. 56, and whole process, Finds that under a sound construction of the terms of the antenuptial agreement or articles of marriage between the deceased Hans George Leslie, Esq., of Dunlugas, and Mrs Mary Ramsay, otherwise Brebner, the decree of proving the tenor of which forms No. 35 of process, the defender, Hans George Leslie, as heir-male of the marriage, holds a right as of credit, under the said agreement or articles, to the lands and estate of Over and Nether Dunlugas, and that the provision of £16,000, provided under the terms of the said postnuptial agreement or articles to the younger child or children that might happen to be procreated of the then contemplated marriage, does not constitute a claim or debt preferable in the question between the defender claiming the estate of Dunlugas as heir-male of the marriage, on the one hand, and the pursuer, as in right of the provision of £16,000 foresaid, on the other; and, with reference to the preceding findings, repels the fifth plea in law stated on record for the pursuers, and sustains the second plea in law for the defender, and appoints the case to be put to the roll with a view to further procedure.
“ Note.—The question on which the Lord Ordinary understands the parties are agreed that a judgment may here, with advantage to their interest, be at present pronounced, is, briefly, whether or not, as in a question between the pursuers, as in right of the money provision of the deceased Mrs M'Leod, amounting to £16,000, on the one hand, and the defender, having right to and taking the estate of Dunlugas, under the provisions contained in the antenuptial contract or articles of marriage between his deceased father and mother, on the other, the former are entitled to claim as against the whole estate of the defender's father, including the heritable estate destined to the heir of the marriage, preferably to the claim competent to the latter as heir foresaid.
The Lord Ordinary has considered this question, which is doubtless of great moment and importance here, in relation to and after examination of the various authorities to which he was referred, or which have appeared to him to bear upon the question.
The result to which he has come is favourable so far to the contention on behalf of the defender. It appears to him that, as heir of the marriage, the latter is entitled to claim the heritable estate destined to him on a footing of right not less complete than that under which the younger children claim the provision of £16,000 which was to be secured to them, and that no preference is created in favour of the latter which would entitle the pursuers to succeed in their argument under the fifth plea, as set forth in their behalf.”
The pursuer reclaimed.
The Court, after hearing counsel, appointed the case to be heard before themselves and three Judges of the Second Division.
Young and Nevay for reclaimer.
Dean of Faculty (Moncreiff) and Lancaster for respondent.
At Advising—
Lord Justice-Clerk.—The case before us raises the question as to the liability of the proprietor of Dunlugas— having right to that estate as heir of the marriage between his late father, Hans George Leslie, and his mother, Mary Ramsay or Leslie—to make good to the pursuer, as in right of the younger children of the marriage, the provision of £16,000, stipulated in the marriage articles, on the faith of which the marriage-contract was entered into. The pursuer demands payment of the entire sum, in so far as the executry estate left by the deceased is insufficient to meet the obligation. The defender pleads on the record non-liability
Page: 278↓
The marriage articles were entered into shortly before the marriage, and almost immediately after it the substance of these articles was embodied in the form of a regular formal contract. It was executed with a view to carry the marriage articles into effect. Under the marriage articles, the intended husband agrees to pay an annuity to his intended spouse, and to make certain payments which were to be secured by infeftment in his estate of Dunlugas, and then, in reference to the heir and the children of the marriage, he comes under an obligation conceived in the following terms:—“And the said Hans George Leslie shall be further bound to convey the lands and estate of Over and Nether Dunlugas, and others, to himself and the heir-male of the marriage in fee; and also to secure to the younger children of the marriage £16,000; and in the event of no heir-male being procreated of the said marriage, to increase the said sum to £20,000, payable at and against the first term of Whitsunday or Martinmas six months after the decease of the said Hans George Leslie.” In the formal contract in implement of these articles, besides securing the wife in her provisions by giving security over the estate, the deceased Mr Leslie proceeds to dispone and convey the lands of Dunlugas in favour of himself, and the heirs-male of the marriage, whom failing his heirs whatsoever; and at a subsequent portion of the deed, and in further implement of the obligation contained in these marriage articles, he binds and obliges himself, and his heirs and successors whatsoever, to make payment of the sum of £16,000 to the younger child or children that may happen to be procreated of the marriage, besides the heir succeeding to the lands and estate of Dunlugas. The wife, in consideration of the provisions for herself and her children, renounced all claim to the rights which would accrue to her at law; and similarly there is a declaration with respect to the rights of the children, which declares that the “provisions before written, conceived in favour of the children of the marriage, are and shall be in full satisfaction of all bairns' part of gear, legitim, portion-natural, executry, and every thing else that they could ask or claim by and through the decease of their father.” The wife, on the other hand, conveys right to an annuity of £700 a-year, to which she had right as the widow of a former husband; certain property in Aberdeen, and the right to a share of a succession in Demerara, together with all she might acquire during her marriage. It is said that, at the date of the marriage, the husband had property, independent of Dunlugas, amounting to £30,000. The estate of Dunlugas is admitted to be of the value of £28,000, and the executry estate (and there is no other heritage or property of the defunct) is stated to be of the value of £1500 or thereabouts. The effect of sustaining the claim of the pursuer, as representing the younger children, would be that payment of the £16,000, except to the extent to which he may be relieved out of the executry, must be made by the defender. The demand for payment of the provisions is represented by the defender as involving a preference inconsistent, as it is said, with the true legal position of the parties under the contract, and causing unfair inequality, apart from the question of legal right. The point which we have first to determine is as to the relative position of the parties as affected by the arrangement entered into under the marriage articles and contract; when that is clearly ascertained and fixed, it will be found that the question at issue has been solved.
The position of Mr Leslie, the defender, is that under the contract, he is heir of provision of his father in the estate of Dunlugas. As the heir of the marriage, he is entitled to complete a title to the property in that character; he is to be taken in the present discussion as heir-male of the marriage. His father bound himself to convey the lands to himself and the heirs of the marriage, and under the marriage-contract his father did dispone the estate to himself and the heir-male of the marriage; and as heir-male of the marriage, the defender is therefore his father's heir of provision in that estate. His right, under the marriage articles, was to obtain precisely such a disposition as was executed. His father by executing it implemented his obligation. The heir could ask no other or better implement than he obtained by the disposition so executed. His right was not one which his father could disappoint by any gratuitous deed, and which, in the event of a sale of the subject. would have given the heir, on his father's death, an interest in the amount of the price as a surrogate for the estate. But in the actual condition of the fact he had got implement of the obligation conceived in his favour, and by that implement he is constituted his father's heir of provision in the estate of Dunlugas. As incident to that position, it follows that he represents the deceased; and, as representative of the deceased, he must fulfil the obligations of the party whom he represents. In a question of payment of a moveable debt, he is entitled to relief against the executor; as an heir of provision in a special subject, he would be entitled to relief against an heir general or heir of conquest, if there were such heirs; but his position is this, that as heir of provision, he represents the deceased, and as heir and representative in that character, he must implement the onerous obligations under which that ancestor has come. It seems to me to be utterly unnecessary to cite authority in support of a proposition so clear. That heirs of provision are liable in suo ordine for fulfilment of their ancestors' obligations is not a question on which doubt can be entertained. That the defender did become such heir of provision by reason of an onerous obligation in the marriage-contract, is in this question of no moment. If an heir of provision be liable, it is of no consequence whether the right was acquired as the result of contract or by a voluntary deed. The liability attaches to the character held by him as such. If at taching in law to the character held by him, it is not material how he came to assume the character. It is a burden to be borne by heirs of provision, and one who takes upon him that character cannot evade the legal burden which such heirs must bear. In stipulating for such a conveyance in his favour, the effect of the conveyance was necessarily to be attended by the obligations incident to the position in which the party taking the, conveyance should be placed. It seems to me impossible, therefore, to dispute that Mr Leslie, the defender, is bound as one of his father's heirs and representatives
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The primary question thus is, whether the defender be exempt from all liability for the provivision sued for. He takes the estate of Dunlugas in respect of the right to succeed to it on his father's death secured to him by the contract between his parents—a contract entered into after the marriage, but, being in terms of an antenuptial arrangement, to be regarded as no less onerous than if it had been subscribed before the marriage of the parties. But the provision for the younger children is contained in the same deed with the spes successionis conferred on the heir-male of the marriage. The respective rights thus provided to the issue of the marriage are essential parts of the contract between the spouses; and neither the one nor the other could be gratuitously defeated by the parents or either of them. They might be disappointed by the onerous deeds and debts of the father, and the exhaustion in this manner during his lifetime of his means and estate. But, on the one hand, of the succession to the estate of Dunlugas on his father's death, the defender, as heir-male of the marriage, could not be disappointed; and on the other hand, the obligation undertaken by the father, supposing means and estate to have been left by him unexhausted by onerous debts, became exigible by the younger child or children from the father “and his heirs and successors whomsoever.” The situation of the two parties under the contract of marriage was, that the heir-male had secured to him the succession to the heritable estate of Dunlugas, and that the younger children were entitled to claim their provisions out of the estate of the father and from his whole heirs and successors. The pursuer has got the estate thus secured to him, and is vested therein as heir-male of the marriage, his rights under the contract having been in this manner fully satisfied. And the pursuer, as in right of the surviving younger child, now claims payment of the provision from the defender as the father's heir taken bound to implement the same, either to the full extent,—leaving the defender his relief against the father's general estate; or to the extent of the sum remaining unpaid, after applying towards its extinction the other funds left by the deceased father. Those other funds are stated to have amounted at his death to about £1500. The burden falling upon the defender will thus be about £14,500, while the estate of Dunlugas, which he takes as heir-male of the marriage, is admitted to be about £28,000.
Viewing the question in this light. I cannot see any legal ground on which the defender can be freed from all liability for the provisions of the younger children, constituted as their respective rights are by the same contract. And that liability, I apprehend, attaches to the defender as heir of his father under the special destination in his favour. It was certainly within the power of the spouses to arrange before their union the respective rights and interests of the children expected to be born of the marriage. They did so by conferring on the heir-male the succession to the estate, which he could take only as heir of the marriage, and by service as such; and by an obligation on the father's part to be binding on his heirs and successors whomsoever to pay such an amount to the other children as the intended spouses mutually agreed on. It is vain for the defender to say that the succession of Dunlugas has not opened to him as heir subject as such to his father's debts and obligations. The father did not divest himself of the fee of the estate. What he did was to secure and provide it to himself and the heir-male of the marriage. It was as his father's heir, therefore, the defender could alone take. Dunlugas, and in that character it is that he is liable for the whole debts and obligations of his father of whatever kind or nature these may be; and, among other obligations, it is as heir of the marriage, taking the family estate, he is liable to pay the provisions claimed by pursuer. That this is the case will be apparent from many considerations.
Supposing there had been no provisions made by the contract for younger children, and that no other provision as regards the offspring had been made than that the estate of Dunlugas should descend to the heir-male of the marriage. And suppose that after the subsistence of the marriage, and the birth of younger children, the father had executed in their favour bonds of provision binding himself, his heirs and successors for certain sums of money. Even in that case the heir-male of the marriage could not carry off the estate exempt from liability for the provisions thus constituted. The father, as fiar, was entitled to impose such obligations on him as his heir and successor in the estate. It may be that, to the extent of any general estate other than that provided to the heir of the marriage, the amount of the provisions might fall to be primarily satisfied; but the father's obligation being equally onerous with the destination of the estate, must be implemented by the heir, when the moveable succession or general estate proves insufficient. One limitation there is in the case which I have supposed—viz., that of the heir's succession being secured by antenuptial deed, and the younger children's provisions being settled by postnuptial deed. It is that, if excessive and unreasonable, having regard to the value of the estate taken by the heir, his liability may be restricted; and the amount of the burden to which he is liable be reduced on equitable principles to such sum as in the whole circumstances the Court may deem reasonable and just. But in so far as reasonable, it it indisputable that such provisions would be an onerous obligation of the father from which the heir of the marriage, as such could not shake himself free.
Another case will illustrate the fallaciousness of the defence of total exemption from liability for these provisions. It is an undoubted principle that as heir of the marriage, taking the family estate, which has been secured to him by the antenuptial contract of his parents, the eldest son of the first marriage will be liable for provisions settled by the father, in the event of his second marriage, upon his second wife and the children of that marriage— this liability, like that incurred in the previous case, being subject to equitable modification by the Court upon consideration of the whole circumstances affecting the father's succession.
The decisions fixing the principles now adverted to, and the import of the authorities, are well stated in Mr Duff's Work on Conveyancing, ( vide section 312;) and after carefully considering the decisions and authorities on which he founds, I am content, in so far as the present question is concerned, to adopt his statement of the law, which is expressly to the effect I have stated.
The defence of total exemption from liability for younger children's provision does therefore appear to me quite untenable. And the defender has not stated any other defence. He has not pleaded that, supposing he is liable to be burdened with provisions to younger children as the heir of the
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The view acted on by the Lord Ordinary in pronouncing the interlocutor appears to me to be inconsistent at once with the state of the record, and with the rights of parties. For while he disposes of the leading pleas to which the argument has been directed favourably for the defender, he has not dismissed the action, but has ordered the cause to the roll with a view to farther procedure. From the findings in the interlocutor, and the observations in the note, his Lordship seems to consider that the claim of the defender to the heritable estate, and the claim of the pursuer for the provision of £16,000, are not preferable the one to the other, but stand on a footing of equality as claims upon the father's estate; and that to this equality effect may be given in this process. Had the whole property, heritable and moveable, left by the father been made the subject of division in a multiplepoinding, on which the parties claimed to be ranked respectively, the claim by the pursuer being for the £16,000, and that by defender for £28,000, as the worth of Dunlugas, there would have been room for a finding,—had the legal rights of the parties been consistent with it,—that the claims should ba ranked pari passu on the fund. On no other footing, however, does it appear that there could exist any case for collation and ranking of the kind contemplated. But the defender has not attempted anything of this kind. He has never intimated his liability for the £16,000 to any extent whatever, and far less has he expressed—supposing liability to exist—any desire that the value of Dunlugas, as it may be realised or be estimated, should be a fund of proportional division between the parties. The case stated in the record, and argued, is quite the reverse. His legal right to take Dunlugas free of liability altogether has been and is the contention of the defender.
On these grounds I am of opinion that the interlocutor of the Lord Ordinary should be recalled, and decree pronounced in favour of the pursuer.
In these circumstances, they, in the exercise of that discretion, contracted that, in the event of their leaving children, the one who should eventually be the heir of the marriage should be in a position different from the others. As to the former, they provided—not that any property or funds should be conveyed to him, or that any money should be paid to him—but only that Mr Macleod's lands of Dunlugas should be vested in himself, with such a destination thereof as would make the heir of the marriage to be heir of investiture to him. The contract provision in favour of that party, therefore, imported merely that he was to be placed in the position of heir to Mr Macleod in the estate of Dunlugas. But he was to hold that character with both the privileges, and the burdens, which the law itself would attach to it; and one of these burdens would, of course be liability for his ancestor's debts. There can be no question that the parties had power to make such an arrangement.
The position of the other children who might be born of the marriage was to be different. It was to be that—not of heirs, but of creditors of their father for a specific sum of money, amounting to £16,000, to be paid at the first Whitsunday or Martinmas which would happen six months after his death. That obligation was imposed on himself, and on his heirs and successors indiscriminately. That obligation being in a marriage-contract, in which the mother of these children was one of the contracting parties, and by which she made provisions to Mr Leslie, was onerous in any question with Mr Leslie himself and his heirs; and the position in which it placed such children was that of creditors of him and them.
The time has now arrived when these provisions have become prestable to the issue of their marriage or those in their right. The defender is the party who is now in the position of being the heir of the marriage of Mr Macleod in the estate of Dunlugas, under the destination in the marriage-contract. The pursuers are the parties who are now in the position of being the creditors in the obligation undertaken by Mr Macleod by that contract for payment of £16,000 to the younger children. If the late Mr Macleod had died insolvent, neither of these parties could have ranked upon his funds in competition with his other creditors. But that is not the case. He has left the estate of Dunlugas, and its value is estimated at £28,000; and it is said that he has left also about £1500 of executry. There is therefore no competition between any of his descendants and stranger creditors. The defender having succeeded to Mr Macleod in the estate of Dunlugas, as heir of provision, he now enjoys
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The defender pleads that the heir of the marriage was placed, by the marriage-contract, in the same predicament as to the estate of Denlugas, as the younger children were as to the provision of £16,000. This might have been the case if, by the marriage-contract, Mr Macleod had divested himself of the fee of that estate during his lifetime, and had vested if in trust, or as a fiduciary fee for behoof of the heir of the marriage. But he did not do so. He settled it so that he himself remained the fiar thereof, and that the heir of the marriage had nothing but a spes successionis thereto, and could acquire right thereto only after his death, and by being then served heir to him, and by so incurring liability for his onerous debts, and above all for a debt contracted by the very deed whioh contained that destination under which he has succeeded.
The defender says that, although he is heir of Mr Macleod, yet ho would be in the position of a creditor of his ancestor in a question with his heirs. That would be true. But in this action the position of the parties who are suing him is that of creditors, not heirs, of his ancestor; and his own position in reference to them is that of heir of his ancestor.
In order to support his claim to the character of a creditor of the late Mr Macleod, he founds upon certain cases, in one class of which a party who was merely apparent heir of provision under a marriage-contract, was found to be entitled, without serving heir to the contracting party in the marriage-contract, to sue him to perform an obligation contained in such contract to make a settlement upon the heir of the marriage; and in another class, of which such a party was found to be entitled to challenge deeds done by the contracting party in fraudem of the provision in the contract in favour of the heir of the marriage. But the cases of the former class were those where the father had not performed an obligation in the marriage-contract to make a settlement in favour of the heir of the marriage. And if the late Mr Macleod had not performed the obligation in the ante-nuptial articles, to make such a settlement, the heir of the marriage might have sued him, without having been served heir to him, to have performed that obligation. But, as already stated, Mr Macleod did perform that obligation, and, having done so, the heir of the marriage could not have taken any right under that settlement otherways than qua heir of the marriage after his ancestor's death, and by being served heir to him. This is expressly stated in the reports of all the cases upon which the defender founded. And that doctrine is explicitly stated in Erskine 3, 8, 73.
And the other class of cases consists of those where the father had granted deeds in fraudem of the destination in the marriage-contract. But, in the first place, the heir in these cases was found to be entitled to do so, not as a creditor of the father for performance of any obligation, but as being entitled to rescind an act done by his father in excess of his powers. And if Mr Macleod had granted such deeds, the defender as heir of the marriage, even while in apparency, might have been entitled to challenge such an abuse of power; although even had that happened, he as heir would still have remained liable for all his father's debts, including the debt in question. And, in the second place, the provision of £16,000 in question (besides being sua natura onerous) having been made in this very contract of marriage itself, can never be brought under the category of being a contravention of the very deed in which the provision was granted. The different parts of such a settlement cannot be frauds upon each other. I am therefore of opinion that the claim of the pursuers is well founded, and that the interlocutor complained of ought to be altered.
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The case is one of no little hardship to the defender, now proprietor of the estate of Dunlugas; and there are equitable considerations which would have rendered it very satisfactory if I could have found legal grounds for disposing of the case in a somewhat different manner. But I have not been able to find any grounds in law on which I can safely sustain this defence to any extent.
The case has been argued on both sides as involving the entire recognition, or the entire rejection, of the pursuer's claim for £16,000. The fifth plea in law for the pursuer has been repelled by the Lord Ordinary, and the second plea in law for the defender has been sustained by the Lord Ordinary; and therefore, although his Lordship, by the use of the word “preferable” might be thought to have disposed only of a claim of preference, yet he has, by his disposal of these pleas, substantially decided the cause against the pursuer. I need not, however, dwell on the terms of the interlocutor, as I understand that your Lordships propose to recall the interlocutor.
I concur very much in the observations made by Lord Cowan on the position of the defender, as the heir of Dunlugas under this marriage-contract. I think he must take as heir of the marriage, and as heir of provision; but at the same time he had a certain qualified jus crediti under the antenuptial marriage-contract; and I do not think he lost that jus crediti under the later and postnuptial contract. On this point I agree with Lord Deas, and I think, as regards the qualified jus crediti of the heir, the postnuptial contract does not impair his rights under the previous articles. Of that jus crediti the father's obligation in the antenuptial contract was at once the foundation and the measure. It was a right to obtain from the father a conveyance of the estate to himself (the father) and the heir-male of the marriage in fee, subject, as I think, to the qualification created and disclosed by the same deed, that the father undertook an onerous obligation to secure to the younger children of the marriage the sum of £16,000. Shortly after the marriage Mr Leslie, the father, by postnuptial-contract fulfilled the obligation in the antenuptial-contract, by conveying to himself and the heirs-male of the marriage his estate of Dunlugas, with obligation to infeft, and other necessary clauses. By the same postnuptial deed, and in implement of the antenuptial engagement, Mr Leslie bound himself and his heirs and successors to make payment of the sum of £16,000 to the younger child or children of the marriage, at the first term six months after his death. Of course Mr Leslie's power to provide effectually for younger children was limited by the marriage articles, a provision in excess of the £16,000 would have been, to that extent gratuitous. The rights of the two parties, the heir and the younger child stood thus. The conveyance of the landed estate left the fee of the estate in the father. I do not think he was fiduciary fiar. He could have sold or burdened the estate. The obligation to pay £16,000 to the younger children was not indeed made a real burden upon the heritable estate, but it was in implement of an onerous antenuptial engagement, and was, therefore, onerous and effectual against all the free estate of the father, heritable or moveable. As against the onerous creditors of the father, neither the heir to the estate, nor the younger child claiming the money provision, had a right amounting to a proper jus crediti capable of competing with onerous creditors. The claims of both parties rest on the same deeds, and are in this respect equally liable to the observation, that they must be postponed to the onerous creditors of the father.
It has been strongly contended at the Bar that, on the one hand, the defender is not an heir, but a proper creditor, not indeed a creditor who can rank with extraneous creditors, but still a creditor entitled to succeed and maintain his right without service, and not bound to any extent by the obligation in favour of the younger children undertaken by his father, and, on the other hand, that the pursuer is just an heir in mobilibus. I have not been satisfied by the argument in support of these propositions. I think that the defender must take as heir of provision. The only jus crediti which he had was within the measure of the original antenuptial obligation; and that was a right to obtain a conveyance which left his father in the fee of the estate, with power to dispose of it, or to contract debts preferable to the heir's right. It appears to me that this defender could not be secured in a proper jus crediti by a deed which left his father in the fee of the estate. It is well observed by Lord Glenlee. in the case of Brown v. Govan, 1st February 1820 (F. C.), that “children can only be secured in their provisions by divesting the father; and if that is done, the father is securing his children against his creditors and against himself, but, otherwise, it would put it in his power to secure his children against all the world but not against himself; it would be to give a right to the children against creditors which they have not against himself.” The same opinion is expressed by Lord Deas in the case of Wilson's Trustees v. Pagan, 2d July 1856, 18 D. p. 1136. The observation certainly applies also to the provision for the younger
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The next step in the course of reasoning'which has led me to support the pursuer's claim is, that the defender, thus taking as heir of provision, but being a creditor quodamodo—a creditor among heirs, or an heir with a right of credit protected against gratuitous acts—is bound to fulfil those obligations of his father, which the law must hold onerous. For the father's proper debts he is confessedly liable. If this provision to younger children had been by the antenuptial deed made a real burden, charged upon the landed estate, he would have been clearly liable. Supposing such a provision to have been made, not in implement of an antenuptial-contract, but by a deed only postnuptial, it would, in my opinion, have been effectual against the defender so far as it was not gratuitous. The heir, while protected against gratuitous acts to his prejudice, is not protected against an onerous deed by the father; and a postnuptial provision for younger children would be viewed by the law as onerous, so far as reasonable, and gratuitous quoad excessum.
If, therefore, this had been a claim by a younger child founding on a postnuptial obligation, I should have thought that the question of reasonableness or excess in the provision would have been presented for disposal. But it is not so. Both obligations are in the same deed; both bear to have been undertaken in implement of antenuptial contract; and I know of no instance in which the Court, dealing with obligations within a deed so highly onerous as a marriage-contract, have ever attempted to weigh or measure the provisions, and adjust them with a view to their supposed reasonableness.
On this point the case of Russell v. Russell, 25th February 1835, 13 S. & D. 551, and especially the note of Lord Jeffrey, is instructive. The circumstances of that case are different, and some of the points of difference have been mentioned by Lord Deas, but I am disposed to think that Lord Jeffrey, who was much pressed by the equitable considerations to which I have adverted, would have felt himself compelled to decide this case as your Lordships propose to do. It is not disputed by the defender that if, in this contract, the provision of £16,000 had been charged upon the landed estate, he must have liable in full payment. But, in a question with the heir only, and without reference to extraneous creditors, I am not able to see any legal ground for refusing to sustain the provision as it stands, if we would have sustained it had it been charged upon the estate. The making it a real burden would make it more secure against others, but not more obligatory on the heir; and there is no question here of the relief of the heir out of moveable estate. The late Mr Leslie held the absolute fee of the estate. His obligation to convey and his subsequent conveyance, did not divest him of the fee, nor deprive his eldest son of the character of heir of provision protected only against gratuitous acts. Within the same deed, and by an act which law cannot regard as gratuitous, he has undertaken to pay £16,000 to his younger children. The sum might have been £1000, or there might have been eight or ten younger children, but the legal question must be the same. It has indeed been so urged to us. The defender has maintained that, not because of any excess in the sum, but because of the nature of the two obligations, he is not liable. I observe that Mr Duff, in his work on Feudal Conveyancing, (p. 417, par. 312), says “Provisions to younger children of a marriage, or the children of a second marriage, secured over feudal subjects, or imposed on the heir of the marriage, may be granted in various modes. The most usual is by providing a sum of money, which it is unnecessary to declare an express burden on the estate destined to the heir of the marriage, unless the father be divested of the fee. The obligation is equally onerous as the destination, and must be implemented by the heir, if the moveable succession prove insufficient.” This view seems to me to be substantially correct, and to be in conformity with the authority of Mr Erskine, Book III. title 8 § 38 and 39, and Mr Bell, (Commentaries, vol. i, page 639). I do not quote at length these authorities, but I am satisfied, on examination, that they do not conflict with the opinion of Mr Duff, or with the judgment which your Lordships propose in this case. The case of Dundas referred to by the Lord Justice-Clerk, though in some respects like the present, is in other respects distinguishable, but it does seem to me to confirm to some extent the views expressed by his Lordship.
If there had been sufficient grounds in law to support some equitable adjustment of this claim, such as would have been applied if it had stood on a subsequent deed, it would have been satisfactory to my mind, for I think it a hard case for the heir. But I am unable to find such grounds in law; and both parties seem to have arrived at the conclusion that the case must be decided either by recognising or by rejecting the pursuer's claim in toto.
So viewing the case, I am of opinion, not without difficulty, and I may say not without some reluctance, that we must reject the equitable considerations which might have been urged for modification of the claim, and that we must find the defender liable to the full extent claimed.
Lord President—I concur with the majority, and the grounds of my opinion have been so precisely and completely stated by Lord Curriehill that I have nothing to add. The judgment of the Court will be, I presume, in terms of the first declaratory conclusion of the summons. How much further we are to go at present I don't exactly know.
Young—Your Lordships will repel the second plea in law for the defender, which the Lord Ordinary has sustained.
Lord President—We can repel the first three pleas in law, in terms of the opinions of the judges. With reference to the others, perhaps it will require some consideration. We need not go any further at present, I think. Then we shall make the interlocutor in terms of the opinions of the majority of the judges, repel the first three pleas stated in defence, and decern in terms of the first alternative declaratory conclusion.
Young—Your Lordships will in the Division, I suppose, consider to what further extent the case can be exhausted here.
Lord President—We pronounce judgment in the First Division.
Young—And that is the place to move for expenses, I suppose.
Lord President—Yes.
Young—I shall ask for the expenses since the date of the interlocutor.
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Lord President—I suppose you have nothing to say against that, Dean of Faculty.
Dean of Faculty—No, but there may be something as to the £5000.
Lord President—Then we shall appoint the case to be put to the roll for the purpose of disposing of the matter of expenses.
Young—“Would your Lordships put it to the roll in the view of hearing out the matter, because the remaining pleas are such that I don't doubt your Lordships will take up and dispose of them there? It would be inconvenient to send the case back to the Lord Ordinary.
Lord President—We shall put it to the roll next week for that purpose.
The case was accordingly sent to the roll.
After argument—
Lord President.—On the fifth of this month we pronounced an interlocutor after a hearing of the cause before seven judges, by which, in conformity with the opinions of a majority of the seven judges, we recalled the interlocutor of the Lord Ordinary, repelled the first three pleas stated in defence, and decerned in terms of the first alternative declaratory conclusion of the summons. By that judgment we in effect affirmed this proposition, maintained to us by the pursuer of the action, that his wife, the deceased Mrs M'Leod, “as the only younger child of Hans Leslie of Dunlugas,” was creditor under his marriage contract for a sum of £16,000; and was entitled to recover that sum by action against the defender as heir of provision under that same marriage-contract. The remaining pleas of the defender are two in number and form now the only obstacle against the pursuer obtaining a decree for payment of this sum of £16,000. The first of these two pleas contends that the pursuers are not entitled to enforce this claim so long as the bond for £5000 is in force, “and before enforcing the said claim they are bound to discharge the said bond, or to get it discharged, and to repay the sums paid under the said bond;” and the other plea is, “In any view, the said sum of £5000 must be imputed in part payment of any sum found due by the defender in this action.” Now the question is, whether the pursuer is now entitled to a decree for payment of £16,000, or whether to any extent the defences which I have just adverted to are to be sustained. For the purpose of solving this question I think it is quite necessary to review the history of this case. The father, Mr Hans Leslie, died on the 4th May 1856, and there can be no doubt that if the parties had then been aware of the existence and operation of his marriage-contract, everything that has since followed might have been avoided, except perhaps the mere question upon the construction of that marriage-contract which we have already decided. But unfortunately the contract of marriage was lost, or destroyed, or had in some way disappeared, and Mr Leslie the elder had left behind him a trust-disposition and settlement by which he provided the estate of Dunlugas to his son the present defender, and made a provision in favour of his then only daughter, Mrs M'Leod, to the terms of which I think it is necessary to advert. He expressed one of his trust purposes to be for securing a provision of £5000 sterling to and for behoof of—( reads.) Now the state of Mr Leslie's affairs, as might indeed be assumed from this provision in his trust-settlement, was that he left substantially behind him nothing but his estate of Dunlugas. It turned out, as we have been informed, that the free executry amounted to some £1500 and not more. In this state of matters the defender brought a reduction of the trust-settlement on the head of death-bed, and he obtained decree of reduction, the effect of which was necessarily to set aside that trust settlement in toto, because there being really substantially nothing but the real estate, and the heir having right to the real estate, and to have it disburdened of any debt that was imposed upon it by the deceased in lecto, his decree of reduction gave him that estate and left substantially nothing to his sister. He then proceeded to make up titles as heir-at-law of his father. Now I think we are bound at the present stage of this cause, and in the state of the pleadings, to assume that at this time both parties were in ignorance of the existence of the marriage-contract. I shall have occasion to state more precisely by-and-by why I make that assumption. I may mention, in the meantime, that it was distinctly announced to us at the last debate which we had upon these remaining conclusions and pleas, that the pursuer did not propose in this action as it now stands to ask for a proof of any of his averments of fraud. I therefore assume that both parties were at this time in ignorance of the existence of the marriage-contract; and in these circumstances a certain transaction is entered into by Mr Leslie the defender, on the one hand, and by the pursuer and his wife on the other, his wife being as I understand then alive. That is contained in a bond, the contents and import of which are also set out upon the record in the 19th article of the condescendence. The object of that bond was to give effect in favour of Mrs M'Leod of the provision which her father had made in her favour by his trust-settlement which had been reduced. This was the proposal of Mr Leslie the defender, and in return for that and as the consideration of his granting that bond, he took from Mrs M'Leod and her husband a complete discharge of every other claim or demand which might be competent to her or her husband against the estate of her father or against Mr Leslie as his heir and representative. The bond settles the £5000 just in terms of the trust-settlement of the father Mr Leslie, that is to say it gives the life-rent to Mrs M'Leod, and it gives the fee to her children, but with a clause of return, as it may I think fairly be called, in favour of Mr Leslie on the failure of issue of the body of Mrs M'Leod. The discharge thus obtained by Mr Leslie was certainly a very full and ample discharge, and the provision of £5000 for Mrs M'Leod and her family was, in the circumstances in which the parties were then placed, or believed themselves to be placed, a very fair and handsome provision. But in the course of time it turned out that there was a marriage-contract between Mr Leslie the elder and his wife, which superseded all these arrangements and proceedings together, if it was to receive effect, and put Mr Leslie the elder in such a position that he really could do nothing in the disposal of his estate at all by any mortis causa deed, because the provisions of his marriage-contract had anticipated everything of that kind, and disposed of his estate and of more than he was possessed of. Now, it is important to consider what were the rights of parties upon the discovery of that marriage-contract—it is not quite accurate, perhaps, to say the discovery of the marriage contract, because it does not exist, but on the discovery of its having existed, and not having been in any lawful way extinguished or cancelled, but, on the contrary, its tenor being proved in a previous action between the parties. What were the rights
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Some discussion then ensued as to whether the pursuer was entitled to a proof of fraud on the part of the defender in the matter of the bond,
Nevay, for the pursuer, contending that the allegations of fraud had not been abandoned at the previous discussion.
Lord President—I have not the least doubt about what took place at the time, for I took a note of it. Mr Young explained that he would put in a minute asking the Court to find it unnecessary to dispose of the reductive conclusions, and further that he does not propose to ask a proof of his averments of fraud, at least at present, as an answer to the defender's pleas fifth and sixth. Now, combining that with the departure from the reductive conclusions, I think we are in a condition to dispose of the whole case, and that the pursuer is not in a condition to ask a proof of his averments of fraud, because he has not pleaded fraud for any other purpose on this record except to support the reductive conclusions.
The other judges concurred.
Lord President—Then what I propose to your Lordships is, to decern against the defender for payment to the pursuer of £11,000 with interest from Whitsunday 1856, but subject to the obligation by the pursuer under his marriage-contract to lay out and invest the same in the manner and for the purposes therein specified; further decern against the defender for payment to the pursuer of the further sum of £5000, with interest as aforesaid, and subject to the obligation of the pursuer foresaid; but under the condition that the pursuer shall, before receiving or enforcing payment of said sum of £5000, free and relieve the defender and the estate of Denlugas of the bond and disposition
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Dean of Faculty—The sum was payable at the first term of Whitsunday or Martinmas which should occur six months after the death, so that Martinmas 1856 is the right date.
Lord President—I thought it was the first term after the decease. Then it should be Martinmas 1856. And we find it unnecessary to dispose of any of the remaining conclusions.
The pursuer was found entitled to expenses to 5th February 1868, and the defender to expenses since that date.
Solicitors: Agent for Pursuer— J. Knox Crawford, S.S.C.
Agents for Defenders— H. & A. Inglis, W.S.