United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1722) Robertson 399

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 90.

John Allardice, Merchant in Campvere, Appellant

v.

Jane Smart, Widow and Executrix of the Appellant's Father, for herself and her Children, Respondent

12th Feb, 1721– 1722.

Subject_Provisions to Heirs and Children. —

A special provision, in a marriage contract, of sums of money to be laid out on land or other good security, and also of conquest in lands, heritages, fishings, sums of money and others, to the heirs of the marriage, went to all the children, and not to the eldest son only.

A discharge of provisions granted by two children to their father, in consideration of a certain sum of money, paid to them, operated in his favour with regard to the remainder of their provisions, and not in favour of another child, who did not discharge.

Subject_Fiar. —

A house, part of the conquest of a first marriage, is disponed to a person and his wife in conjunct fee and life-rent, and to the bairns of the marriage in fee, whom sailing, to the heirs of the husband: the husband being fiar might settle the life-rent thereof on a second wife.

By contract of marriage in September 1683 between John Allardice, Merchant in Aberdeen, and Agnes Mercer his first wife, the appellant's father and mother both now deceased, the said John Allardice obliged himself to lay out 3000 merks Scots of his own money, together with the like sum he was to receive with his wife as her portion, upon land, or other good security, and to settle the same upon himself and the said Agnes Mercer, in conjunct fee and life-rent of the longest liver of them two, and the heirs to be lawfully procreate between them; whom sailing, to the said John Allardice, his heirs, executors, and assignees. The contract contained this proviso, “that whatsoever lands, heritages, fishings, debts, sums of money and others, it shall happen either of the said parties to conquer, acquire, or succeed to, during the time of the said marriage, the heirs of the marriage shall succeed thereto in integrum.”

In 1684, after the marriage had taken effect, John Allardice, the appellant's grandfather, by disposition, conveyed a house and its pertinents in Aberdeen, to the said John Allardice the father, and the said Agnes his spouse, in conjunct fee and life-rent to the longest liver of them two, and to the bairns lawfully begotten, or to be begotten, between them in fee; whom sailing, to the heirs of John the father.

In 1700 the appellant's mother Agnes died, leaving issue the appellant and two daughters, the children of that first marriage. And at this time the father's free stock amounted to about 18000 l.

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Scots, besides the said house and pertinents in Aberdeen, valued in his books at 5210 l. 16 s. 9 d. Scots, and all his household goods.

In January 1703 a contract of marriage was entered into between the appellant's father and the respondent Jane his second wife, by which he obliged himself to lay out 15000 merks of his own money, together with the sum of 7000 merks he was to receive as the said Jane's portion, upon land or other good security, and to settle the same upon himself and the said Jane in conjunct fee and life-rent, and to the children to be procreated of the marriage in fee, whom sailing, to be the heirs, executors, and assignees of the husband; and he likewise obliged himself to infeft the wife in the said house in Aberdeen in life-rent during her widowhood, in case she should survive him, which he obliged himself to warrant; but it was provided, that if the respondent should after his death be evicted thereout, she should be allowed 100 l. Scots yearly for the rent of any other house she should think fit to take.

The appellant, being bred a merchant, was settled at Campvere, and his father gave him an advancement to a considerable amount. The two daughters of the first marriage were married in the father's life-time, and he gave each of them 4000 merks for their portions; and the daughters, by their contracts of marriage, discharged him of all provisions they could respectively claim by their mother's marriage contract or otherwise howsoever.

The appellant's father died in May 1718, leaving the respondent, his widow, and nine children, four sons and five daughters, of the second marriage. By his will, and a codicil thereto, he named his wife, the respondent Jane, sole executrix and universal legatee, with the burden of payment of 6000 merks to each of the four sons, and 4000 merks to each of the five daughters of the second marriage, and of some small legacies to the children of the first marriage. After his father's death, the appellant was cognosced heir to him in the aforesaid house and premises in Aberdeen, and infeft. Besides that house and premises, and household goods, the deceased left about 39,535 l. 1 s. 6 d. Scots of personal estate, including heirship moveables.

Soon after his father's death the appellant brought an action before the Court of Session against the respondent, for recovery of the 18,000 l. Scots, being, as he stated, his father's stock at the dissolution of the first marriage, after deduction of the 8000 merks paid to his two sisters, and for recovery of the said house in Aberdeen, as being conquest of the first marriage, and provided to the heir thereof, and to have the same freed of the respondent's life-rent. The respondent made defences, and the matter being debated before the Lord Ordinary, who reported the same to the Court, their lordships, on the 16th of February 1720, “found that the heirs of the first marriage have right to all the conquest during that marriage, in regard that at the time of their mother's death, there was a sufficient fund to answer the provisions in both contracts of marriage; and found that the

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provisions in favour of the heirs of the first marriage are to be understood in favour of the children of the marriage; of whom there being three in number, and two of them having accepted of special sums from the father, in satisfaction of all they could claim by virtue of the said contract; therefore the appellant was only entitled to claim a third share of these provisions; and found that the provisions in the second contract of marriage are rational and suitable provisions; and found that the relict has right to the life-rent of the house provided to her by the contract of marriage with her husband, who was fiar.”

The appellant reclaimed, and after answers for the respondent, and a hearing, the Court, on the 14th of July 1720, “found that two daughters of the first marriage having accepted of provisions in their contracts of marriage, in satisfaction of all that could fall to them by their mother's contract; which provision being less than would have fallen to them as two of three children of the first marriage, supposing that all the children of that marriage were entitled to an equal share the surperplus of the two-thirds more than the provisions received did not accresce to the son of the said marriage but was at the father's free disposal; and before answer to the debate, whether the provisions in the first contract in favour of the heirs of that marriage, did entitle the son of that marriage to the succession thereof, exclusive of his two sisters, or if the three children had an equal interest, ordained the records of retours in the Chancery to be inspected, and that either party might have access thereto, that it might appear, whether in the case of provisions of sums of money, or other moveables in favour of the heirs of a marriage, the eldest son of that marriage be not usually and uniformly retoured heir of provision of the marriage, exclusive of daughters, or younger sons; or if usually, or in any case, more sons and daughters of a marriage are found to be retoured heirs of provision, by a virtue of a contract of marriage conceived in the terms aforesaid; and that the directors of the Chancery should certify what appeared thereon; and found that the clause of acquisition in the deceased's first contract comprehended goods, merchandize and gear; and also found that the special sum provided to the children of the second marriage, is in the first place to be taken out of the acquisition during that marriage, and that the same does affect the acquisition of the first, in case, and in so far only as the aquisition of the second marriage falls short of satisfying the same.

The parties thereupon procured certificates from the deputy-director of Chancery, the first of which, obtained by the appellant, dated the 18th of July 1720, “certified after inspection of the register of retours he found that the eldest son of a marriage is usually and uniformly retoured as heir of provision of the marriage, and that solely and no other person joined with him; and that in no case did it occur therein, that more sons and daughters of a marriage are retoured heirs of provision by with of a contract of marriage conceived in favour of the heirs

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of a marriage” The other obtained by the respondent, dated the 10th of January 1720–1, bore “that it did not occur in the registers of retours in Chancery, that any person is served heir of provision to sums of money or other moveables.”

After production of these certificates and hearing the import of the word heirs debated, the Court on the 11th of January, 1720–1, “found that the three children of the first marriage had an equal interest in the provisions contained in their mother's contract of marriage.”

Entered, 6 Nov. 1721.

The appeal was brought from “several interlocutory sentences or decrees of the Lords of Session in Scotland, of the 16th of February, and 14th of July 1720, and of the 11th of January following.”

Heads of the Appellant's Argument.

Though by the conception of the first contract, the heirs of the marriage are to succeed, which, when the subject of the succession is personal, may admit of the interpretation, that the provision was in favour of the children; yet still the father had the power of division, and as he has only given 4000 merks to each of the daughters, which they accepted, this was nothing but a dividing to each of them their share thereof, leaving the rest for his only son to succeed to, who, properly speaking, is the only heir of the marriage. Without this the said contract could never be fulfilled, whereby the succession to the conquest was provided to the heirs of the marriage in integrum. And this appears to have been the father's intention; since he took no assignment of any pretensions his daughters might have thereto, but gave them such a provision as he thought was suitable, with respect to the heir, and the extent of his fortune.

As to the house in Aberdeen, it is out of the question; the appellant's father, during his first marriage, having received a disposition from his father to him, in favour of himself and his wife, in conjunct fee and life-rent, and to the heirs of that marriage in fee; and the appellant, who alone could be heir of the marriage in lands, is accordingly cognosced heir and infeft. It appears from the second contract of marriage, that both parties were diffident of the effect of the respondent's life-rent in the House; for though the appellant's father warranted it, yet he provided that in case of eviction, his heirs should only be liable in 100 l. Scots per annum, for the rent of another house; which 100 l. Scots ought to be taken out of the acquisition during the second marriage, rather than that the appellant, the heir of provision of the first marriage, and consequently a creditor, should be burdened therewith.

As to the father's stock, which amounted to 18,000 l. Scots, at the dissolution of the first marriage, and to 20,000 l. by the improvement thereof at the time of entering into the second marriage, the provision of 15,000 merks to the children of the second marriage, where the remainder included the special provision of 6000 merks in the first contract was invalid. But there neither

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was nor could be a disposition nor assignation to any part of the deceased's stock at the time of entering into the second marriage: all the father could do was to oblige himself in the sum of 15,000 merks certain to the children of the second marriage, which must always be supposed to be made good out of any other separate estate, which he had, or might acquire without prejudice to his obligations in his first contract of marriage; the children of that marriage being properly creditors to the father. And the father, at his death, left an estate behind him sufficient to satisfy both his marriage contracts.

With regard to the interlocutor finding that the three children of the first marriage had an equal interest in the provisions contained in their mother's contract of marriage; the import and constant acceptation of the word heirs, in all deeds and writings, is always understood in favour of the eldest son; the only case wherein daughters are joint-heirs with the eldest son, in the personal estate, being where they are left unprovided by the father; which is no way applicable to this case. The uniform and usual practice of the records of retours in the Chancery in Scotland, evidently shews that the appellant only was capable of being retoured heir of provision in the contract of marriage, and he accordingly was so retoured. By this interlocutor the two daughters are entitled to an equal share of the whole provisions in the contract, both real and personal, which is directly contrary to the constant practice of the Scots law, and the universal custom of all degrees of persons, who always make a difference between the eldest, and younger sons, and daughters, even where provisions are to children; much more when to heirs. It is evident that this was the intention of the parties to the contract by their using simply the word heirs, the meaning of which they could not be ignorant of, and by the particular enumeration of the subjects provided to the heirs, viz. lands, heritages, fishings, &c.

The decree of the Court seems inconsistent with itself, since the Court of Session, by the first part of their interlocutor of the 16th of February 1720, find that the heirs of the first marriage have a right to the acquisition during that marriage, which the respondent has acquiesced in; and yet it is not alleged, that more than 8000 merks has been paid: and the provision to the appellant and his sisters by the codicil to their father's will comes far short of fulfilling the provisions in the first contract.

Heads of the Respondent's Argument.

The appellant has only a right to the third of what his father had at the dissolution of the first marriage, for the provision is in favour of heirs to be lawfully procreate between the father and mother; which can have no other meaning but the children of the marriage, and not of the heir male only, especially in cases where there is nothing but personal estate; and the rather since the 6000 merks agreed to be settled, is to go in the same way as the conquest, which plainly shews the import and meaning to have

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been all the children, otherwise the younger children must have had nothing.

The father being bound to apply the conquest to the children of the first marriage, he might discharge that obligation the best way he could to the satisfaction of the parties; and as he was the debtor, whatever advantage is obtained by any transaction, must be to the use of the father; for he must be presumed rather to discharge himself, than to acquire any right to another. The two sisters were then entitled each of them to a third share, the father agrees with them for a less sum, and that must and can only be to the benefit of the father, who was their debtor; and this the rather since he had been at the expence of their education and marriages after his second marriage, which so far diminished the conquest of the second marriage, to which the respondent and her children had a right. Nor could there be any occasion for an assignment to the daughters shares, for the father being debtor, the release extinguished the debt; and the father was so far from intending any benefit to the appellant by these transactions, that he expressly declared in his settlements, that the sum of 10,000 merks, and fee of the house given to him, should be in full of all he could claim by his mother's contract of marriage, or any other way whatsoever.

No. 50. of this Collection.

With regard to the house in Aberdeen, the father was seised thereof in fee, he could have disposed of it to whom he pleased, and consequently the settlement thereof upon the respondent for her life only, cannot be called in question by the appellant; and the rather since the father has warranted the said house to the respondent, which warrandice descends to the appellant as his heir, and he is thereby bound to perform his father's deeds, and cannot call any of them in question; which case was determined by the House of Lords in 1718–19, in the case Ayton v. Colville.

The greatest part of the appellant's father's estate was gained during the second marriage: the fortune the respondent brought was more than twice as much as that of the appellant's mother; the appellant has had his education at the expence of his father, and has received much more, than any of the children of the second marriage, who must be educated, and whose provisions are much diminished by this expensive suit, and the provisions for the children of the second marriage are entirely rational.

Judgment, 12 Feb. 1721–2.

After hearing counsel, It is ordered and adjudged that the said petition and appeal be dismissed, and that the interlocutory sentences or decrees therein complained of be affirmed.

Counsel: For Appellant, Rob. Raymond. C. Talbot.
For Respondent, Sam. Mead. Will. Hamilton.

Hog v. Lashley on appeal 7 May, 1792.

In the important case of Hog v. Lashley, in the House of Lords 7 May 1792, a judgment of the Court of Session was affirmed, which found that renunciations by children of their claim of legitim operated in favour of a child who did not renounce, and

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not of the father. In the present case the House affirmed a contrary doctrine laid down with regard to the renunciations made by the children of the first marriage of their provisions by contract.

1722