United Kingdom House of Lords Decisions

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Cite as: [1727] UKHL Robertson_594

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SCOTTISH_HoL_JURY_COURT

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(1727) Robertson 594

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 133.

William Nisbet of Dirleton, Esq; eldest Son of William Nisbet, Esq; deceased, by his first Wife, and Executor of his said Father, Appellant

v.

Janet, Jane, and Willielmina Nisbet, Daughters of the said William Nisbet, deceased, by his second Wife, by Mr. David Erskine of Dun and Others, their Tutors and Curators, Respondents

7th March 1726–1727.

Subject_Legitim — Husband and Wife — Provisions to Heirs and Children. — Bonds. —

Kaims, 18 Jan. 1726.

Portions to children in a contract of marriage if not so expressed, do not exclude their right of legitim.

Upon a wife's renouncing her thirds, by the contract of marriage, the division of the personal estate is bipartite, one half legitim, the other half dead's part.

Provisions to children, in this case, do not come off the whole head of the executry as a debt; but they are first to impute the legitim in payment of these portions, and take the rest as a debt from the deads' part if necessary.

Bonds fall under legitim.

William Nisbet, late of Dirleton, deceased, had by his first wife the appellant, his eldest son and heir, Walter his second son, and three daughters.

By contract executed in April 1711, previous to Mr. Nisbet's marriage with his second wife, the mother of the respondents, in consideration of the lady's fortune, which was considerable, he settled upon her lands, to the value of 4000 merks per annum, for her jointure, in full satisfaction for her dower, third of moveables, or others which she might claim by law, in case she should survive her said intended husband: and by the same contract he bound himself to lay out the sum of 100,000 l. Scots in the purchase of lands to be settled upon himself in life-rent, and the heirs male to be procreated of the said intended marriage in fee; but if there should be no heir male of the said marriage, but daughters, Mr. Nisbet bound himself and his heirs to pay the several sums following; if but one daughter, the sum of 36,000 merks; if two daughters, the sum of 50,000 merks; and if three or more daughters, the sum of 60,000 merks, to be divided as the said

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William Nisbet should think fit, and payable, after his decease, at the daughters' respective ages of eighteen or marriage, with interest from that time; and till the same should be payable, he covenanted to maintain, educate, and aliment the daughters according to their quality; with proviso, that the shares of daughters dying should go to survivors; but if one daughter only should survive, she should have 40,000 merks. There was no proviso, or clause in this contract, that the sums provided to the daughters should be held to be in full of their legitim.

In July 1718, William the father made his will, naming the appellant his eldest son executor, and universal residuary legatee, and disponing his whole moveable estate in his favour, with the burthen of certain legacies, and with a proviso, that the testament should not derogate from the provisions granted to his other children.

In September 1722, when there was issue of the second marriage, one son David, and two daughters Janet and Jane, two of the respondents, William the father, in pursuance of the marriage contract, disponed certain lands of the value of 100,000 l. Scots and upwards, in favour of the said David and the heirs male of his body; whom sailing, to the other heirs male of the marriage; whom sailing, to Walter Nisbet his second son of the first marriage. And of the same date, he granted a bond of provision to the respondent Janet his eldest daughter, for payment of 12,000 l. Scots to her, at the first term after his decease, with interest thereafter, which he declared to be a burden upon the 100,000 l. Scots provided to the heir male of the second marriage; and that it should be in full of her portion natural, and of all succession she could claim through her father's decease, or her mother's contract of marriage. On the 28th of March 1724, he granted a bond in same terms to his daughter Jane for 9600 l. Scots.

David, the eldest son of the second marriage, died before his father, whereby his provision went to Walter the second son of the first marriage; and the bonds of provision to the two daughters became void. William the father afterwards died in October 1724, leaving his wife pregnant of the respondent Willielmina, born a few months after her father's death; for her no special provision had been made by the father.

After the father's death, the respondents brought an action against the appellant before the Court of Session,. in which they claimed the 60,000 merks specified in their mother's contract of marriage, as a debt upon the appellant; and also a moiety of the residue of the clear personal estate as their legitim. The appellant pleaded, that the legitim was only due to children who had no other provision, and that the respondents were excluded from legitim by the provisions made for them in their mother's contract of marriage. The respondents in answer contended, that these provisions were not given or to be accepted of in full of legitim, but were only to secure a certain sum to the children in all events, but not to deprive them of their legal provisions.

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The Lord Ordinary, on the 17th of July 1725, “Found that the provisions in the marriage-contract in favours of the respondents did not exclude the legitim.” And the appellant having reclaimed, the Court adhered to the Lord Ordinary's interlocutor on the 2d of December 1725.

The appellant having petitioned against this interlocutor, after answers thereto, the Court, on the 18th of January 1726, “Found that the deceased's moveable estate admitted only a bipartite division, betwixt the children's legitim and the deceased's deads part by equal portions: and found, that the provisions of the deceased's contract of marriage in favour of his children the respondents must come off the whole head of the executry as a debt; and that what remains after payment of these provisions and of the deceased's other moveable debts, the children come to have a right to the equal half thereof as their legitim.” The appellant having petitioned against this interlocutor, the Court, on the 8th of February 1726, “adhered to that part of the former interlocutor finding that the deceased's moveable estate admits only of a bipartite division betwixt the children's legitim and the deceased's deads part by equal portions; and found, that the respondents had a share in virtue of their legitim to the half of the principal sums in bonds due by the deceased.” And after a hearing on the point of the collation contended for, the Court, on the 11th of same month, “Found that the provisions of the deceased's contract of marriage in favours of his children the respondents, must come off the whole head of the executry as a debt; and therefore adhered to their former interlocutor.”

Entered, 22 Feb. 1725–6.

The appeal was brought from “an interlocutory sentence of the Lord Ordinary, made the 17th of July 1725, and the affirmance thereof by the Lords of Session the 2d of December following; as also from several other interlocutory sentences of the Lords of Session, of the 18th of January, 8th of February, and the 11th of same February 1726.

Heads of the Appellant's Argument.

The testator in his contract of marriage with the respondents' mother, having obliged himself, his heirs and executors, to pay 60,000 merks to the daughters of the marriage, the respondents can claim no more than that provision, which the appellant, as heir to his father, would have been obliged to pay them, if the personal estate had not amounted to that sum. It is indeed true, that a father may make provisions to his children by bonds, or other voluntary deeds, which will not exclude their legitim unless so expressed, because of the presumed intention of the father to reserve to them such a claim; but where provisions are made by contract, before marriage, in the way of stipulation with the intended wife and her friends, fixing the share of the father's personal estate to which the children are to succeed; in that case, as

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the father's estate is obliged, in all events, to pay them the proportion, stipulated in the contract, so he is left at liberty to dispose of the rest as he pleases.

Stair's Inst. B. 3. tit. 8. § 45.

Mackenzie's Observ. 10 Act Parl. 3 Car. 2.

If the respondents were not barred by the provisions made for them, in the mother's contract of marriage, yet these provisions behove to be imputed to the legitim ( i.e. must be reckoned as part of it), and the children could, in so far only as these provisions fall short, have an action of supplement. That this was the rule in the Roman law cannot be a question; therefore, as this doctrine of legitim was wholly derived from thence, it ought to determine the present case, if it were not sufficiently established by the law of Scotland. Bonds of provision granted to children, or portions given with daughters at their marriage, were always imputed in payment of their legitim. The Lord Stair, and Sir George Mackenzie, state this as a settled point in the law of Scotland, as founded in the nature of the thing. The law gives a legitim to the children for their provisions; but does not exclude the father's paying this legitim, either in whole or in part, during his life; and every indefinite payment or provision made, during the father's life, must be imputed towards satisfaction thereof, from the undoubted maxim of law, that, debitor non præsumitur donare.

Allardyce v. Smart, No. 90. of this collection.

All the Scots lawyers agree, that when there is a relict surviving, as in the present case, the executry is tripartite. To such legitim the children have a right by succession, and not from any communion or joint interest in their father's estate. And it is jus tertii, for the children to question which way their father has disposed of two thirds; and of this there is an express precedent in the case of Allardice v. Smart, affirmed in the House of Lords 12th February 1721–2, where a provision of 24,000 merks was made, in a contract of marriage, to the children of the marriage: the father having transacted with some of the children for small sums, the Court of Session found the benefit of those transactions did not accress to the remanent children; and although in that case the children had a joint interest, yet the jus accrescendi did not obtain.

But the jus relictæ arises from the joint communion betwixt the husband and wife, and the legitim being a debt upon the father to provide such a share of his estate to his children, after his decease, whenever that debt comes to be discharged, and the joint estate of the husband and wife is disburthened thereof, an equal division betwixt the relict and executor must necessarily happen; and all the lawyers who have said that when the wife predeceaseth, the executry is at any time bipartite, have considered the case in this light, viz. that upon the wife's demise, her executors have claimed a third, whereby only two thirds remain under the father's administration, to be divided, upon his decease, betwixt the children and his executors; since, then, the wife's executors can claim, and are presumed to have claimed her third, and the children dying before their father are no more considered than if

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they never had existed, the reasoning cannot reciprocally hold from the one to the other.

By the act of parliament 1669. c. 19. there is no more intended than a regulation of quots payable to the bishop; and all the lawyers who have written on the subject, particularly Sir Geo. Mackenzie, have put no other gloss upon it. The legislature might certainly tax what part of a man's moveable estate they thought fit; but such taxation could never regulate the succession of moveables otherwise established.

Heads of the Respondents' Argument.

The intention of the marriage-articles was, no doubt, in all events, to secure a certain provision for the daughters, because it might be uncertain what the personal estate of their father might amount to at the time of his decease; but that was by no means to exclude them from the provision the law makes for them; for had the intention of the parties been such, it would have been so expressed, but it not being mentioned to be in exclusion of their legitim they are entitled to both. This is the unanimous opinion of all the lawyers of Scotland, particularly Ld. Stair's Inst. tit. Executry, § 45. Sir John Nisbet, fo. 9. Sir John Stewart, fo. 14. and 132.

The father has a right to, and is the common administrator of all the personal estate during his life only: at his death the personal estate is subject to be divided according to the direction of the law. If, therefore, it excludes the wife's right by a settlement upon her, that does not vest her right in the husband, but the personal estate of the father, which otherwise would have been divided into thirds, will be divided into moieties. If there are children who have accepted of a provision in lieu of their legitim, that does not give the benefit of their share to the husband, but the wife in that case is entitled to a moiety; and there is the same reason, that where the wife accepts of a settlement in lieu of her third, the children should have the benefit of that, and be entitled to one moiety.

By the instructions given to the commissaries in confirming of testaments, the rules of distribution are laid down thus: If there are no children, or only children that are foris-familiat (that is, have accepted of a portion in full of their legitim), the testament is to divide in two; and though the case of a wife's renouncing is not expressly taken notice of, yet the reason is the same; for since the non-existence and renunciation of the children are put upon the same footing, the same reason holds where there is no wife, or where she has renounced; if there was no wife, the division would be in moieties; if she had renounced, the division ought to be the same; and so it is in the case of children, and the practice of the Commissary Court is the same in both cases. By the act 1069. c. 19. it is enacted, “That the commissaries admit of no division in testaments in favours of the widow who has renounced, and if a bipartite or tripartite division be prayed

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by the executor at the confirmation upon her account, if it shall appear she has renounced, the testament (hall be confirmed without division upon her account.” Consequently, since she is excluded, and no division to be made on her account, the distribution must be in the same manner as if there was no wife, that is by moieties. Nor will it alter the case that the provision made for the wife is out of a real estate, and consequently a fund out of which the children could have no legitim; for if a real estate were given to younger children and accepted by them in satisfaction of their legitim, their renunciation would have the same effect as if so much of the personal estate had been paid them; and so if the husband sells a real estate, though the widow and children would have had no interest therein, if it had not been sold, yet the price becomes personal estate, and adds to that common fund in which the wife and children are severally interested.

The appellant contended, that by act of parliament 1661, c. 32. bonds bearing interest are declared moveable as to some particular cases, yet no notice is taken of the children's legitim, and therefore that they must, as to that, remain still heritable, and consequently not fall under the legitim. But these bonds are by the act declared moveable, that the same might fall to the executors, or belong to the nearest of kin, that is making them moveable as to all effects; and the legislature having it in view to determine in what cases they should remain heretable, expressed it to be, Quoad fiscum & relictam; as they determined in what cases they were to be heretable, and there is no mention of the legitim, they must as to the children be considered as moveable. And since by this act they go to executors or nearest of kin, exclusive of the relict, they must be divided wholly into legitim and dead's part.

B. 3. tit. 9. § 11.

Collation, or bringing into hotchpot, was only introduced as a remedy for preserving an equality amongst brothers and sisters, and concerns only the division of the legitim betwixt them, but has no effect upon the extent of that legitim, nor upon the extent of the dead's part, or the widow's share. The right to the legitim is not a succession but a division arising upon the death of the father, and exactly of the same nature with the third due to the widow; and supposing the widow should by the marriage have a particular sum settled to be paid her upon the death of her husband, she will not be obliged to bring that into hotchpot, or impute it pro tanto; no more ought the children what is provided for them. Especially since the provision by the marriage-articles in favours of the respondents is to be considered as a debt, and as such is to be paid before any division can be made, for the division operates only upon the residue of the personal estate after all debts paid, and if they are creditors they ought not to impute; and of the same opinion is Sir George Mackenzie, for he says, If children get bonds of provision from their father, they are not thereby excluded from their legitim, nor are they obliged to collate these bonds of provision, and to impute them as a part of their portion natural, but they have right to them as mere

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creditors, and may likewise seek their legitim and thus it has been determined in several cases.

Judgment, 7 March 1726–7

After hearing counsel, It is ordered and adjudged, that the interlocutory sentence of the Lord Ordinary of the 17 th of July 1725, and the affirmance thereof be affirmed; and it is further ordered and adjudged, that so much of the interlocutory sentence of the 18 th of January 1726 as appoints only a bipartite division betwixt the children's legitim and the deceased's part by equal portions be affirmed; but that the other part of the same interlocutory sentence whereby the Lords of Session, found “ That the provisions in the deceased's contract of marriage in favour of the children, the plaintiffs, must come off the whole head of the executry as a debt” be reversed: and it is also ordered and adjudged, that the interlocutory sentence of the 8 th of February 1726 be affirmed; and it is hereby further ordered and adjudged, that the respondents have their full legitim as to the demands of the 60,000 merks, or any part thereof that may become due by the marriage-contract, when the same shall become due and be demanded; that then what shall have been received on the account of the legitim shall be accounted and imputed as payment pro tanto of the marriage contract.

Counsel: For Appellant, P. Yorke. Dun. Forbes.
For Respondents, C. Talbot. Will. Hamilton.

That part of the judgment here reversed, relative to the children's provisions being taken off the whole head of the executry as a debt, is given as an existing precedent by Lord Kaims in his Decisions. I do not find this stated in the Dictionary, or in Bankton or Erskine; but the judgment of the House of Lords seems directly contrary to the doctrine laid down in Erskine, B. 3. Tit. 9. § 22. on this point, supported by two decisions, Dickson, 19th June 1678, and Murray, 16th July 1678.

This case agrees more with the decision in the important case of Hog and Lashley, in the House of Lords, 7th May 1792, than the case of Allardyce v. Smart here mentioned does. The pre sent, however, is not upon points precisely similar to those in these other cases.

1727