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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Thomas Pringle of Symington v. Alison Pringle and Husband [1741] UKHL 1_Paton_297 (21 January 1741)
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Cite as: [1741] UKHL 1_Paton_297
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SCOTTISH_HoL_JURY_COURT
Page: 297↓
(1741) 1 Paton 297
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
No. 59.
v.
Subject_Provision to Children.—
A clause in a marriage contract, provided a certain sum to the children of the marriage, in satisfaction of all they could claim, except what the father should further provide to them of his own free-will,—found that the eldest son, by accepting a disposition of the landed estate from his father, is not deprived of his right to claim his share of this sum, as a child of the marriage.
[Clerk Home, No. 145. Kilk. p. 147. Elchies, No. 15, voce Mutual Contract. Brown's Supp. V. p. 693.]
In the marriage contract of Robert Pringle and Anne Rutherford, (father and mother to the parties to this appeal,) the said Robert bound himself, in case of his wife's predecease, to pay to the children of the marriage the following provisions:
‘If there be only one son or daughter procreate of that said marriage, to content or pay to the said son or daughter the sum of 8000 merks, and if there be two or more children, to pay to them among them all the sum of 1200 merks money aforesaid, which sums of money provided to the child or children to be procreate in the said marriage in the cases above mentioned, are to be divided and proportioned among them by the
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said Robert Pringle their father, as he shall think fit; for which division, the said Robert Pringle, his declaration and appointment, at any time of his lifetime under his hand, shall be a sufficient warrant and rule; and in case the said Robert Pringle their father shall not make the said division under his hand in his own time, then it shall be leasome and lawful to four of their friends and nearest of kin, two on the father's side, and two on the mother's side, to proportion and divide their provisions, as the said Robert Pringle their father might have done the same; and which portions and provisions above provided to be divided as said is, the said Robert Pringle in the case aforesaid, binds and obliges him, his heirs, executors, and successors whatsoever, to pay to the said daughters to be procreate of the said marriage, at their full and perfect age of sixteen years compleat respectively, and to the son or sons to be procreate therein at their full and perfect age of twenty-one years complete, or at the said daughters or sons their respective marriages, which of them shall first happen, together with the due and ordinary annualrent of the said provisions conform to the Act of Parliament, yearly, termly, and continually, during the not-payment thereof; and which sums of money provided to the said children, one or more, to be procreate in the said marriage, is hereby declared to be in full contentation and satisfaction to them of all they can crave of the said Robert Pringle their father, except what further of his own proper will he shall provide to them, as also what shall accrue and belong to them as heirs and nearest of kin to the said Robert Pringle their father, in Page: 299↓
case he shall not have children in any other marriage.’
The issue of this marriage were, Thomas Pringle, the appellant, two other sons, and one daughter, Alison Pringle, one of the respondents.
In June 1698, Robert Pringle executed a voluntary disposition of his landed estate in favour of the appellant, (then an infant,) reserving to himself full power to burden and affect it with debts, or to sell it, &c. in such manner as he should think proper. The disposition bears to have been made for the love and favour the father bore to his son, and for certain other onerous causes.
He likewise gave certain portions to his two younger sons, and took from them discharges of any claim they might have under the marriage contract. He made no declaration with regard to the division of the 12000 merks, nor did he execute the reserved powers with regard to the landed estate.
He died intestate in 1738, predeceasing his wife, and leaving personal property to the amount of 19000 merks. The appellant took possession of the estate, and the respondent, Alison Pringle, was confirmed executrix, and soon after was married to the other respondent, Macdowal.
The respondents then raised an action against the appellant before the commissaries for L.190, which was in the father's repositories at the time of his death. The appellant admitted the receipt of the sum, but pleaded compensation upon the ground of his right to a share of the 12000 merks provided in the marriage contract. The respondent insisted
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The commissaries found, (10th Feb. 1739,) ‘That the disposition of 1698 did not exclude the appellant from his share of the provisions stipulated in the marriage contract.’
But the Court, upon advising a bill of advocation, which was reported by the Lord Ordinary, found, (14th December, 1739,) ‘That the son having succeeded to his father by disposition to his land estate, his share of the 12000 merks was thereby extinguished.’
The Lord Ordinary therefore advocated the cause, and repelled the plea of compensation, (21st December;) and the Court adhered, (8th Feb. 1740.)
Entered Feb. 26, 1740.
The appeal was brought from these interlocutors of the 14th and 21st December, 1739, and 8th February, 1740.
Pleaded for the Appellant:—It makes no difference to the appellant whether he be considered as having succeeded to the estate by disposition or by descent: for, 1st, The taking a land estate as heir, cannot be held as in satisfaction of any obligation the father came under to his heir, under the marriage contract.
2. A disposition, which the granter could alter at pleasure, could not have been intended as in satisfaction of a prior personal obligation.
3. Nothing was done by the father to show that such was his intention. If he had intended this, he would have taken a discharge as he did in the case of his two younger sons.
4. The provisions, moreover, are declared to be
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Pleaded for the Respondent:—It could not have been intended that the eldest son should have a double portion, (the real estate being of much greater value than 12000 merks,) and yet come in for a share of this sum. So far was the father from intending this, that, in the disposition of 1698, he had it in view, that he might throw some part of the provisions for the younger children upon the real estate.
Judgment, 21st January, 1741.
After hearing counsel, it is ordered and adjudged, ‘That so much of the interlocutor of the 21st December, 1739, whereby the Lord Ordinary did advocate the cause be, and the same is, hereby affirmed; but that the residue of the said interlocutor, as also the interlocutor of the Lords of Session of the 14th December, 1739, and other interlocutors adhering thereto of the same month be, and the same is hereby reversed; and it is hereby declared and adjudged, that the disposition granted by the appellant's father of his land estate to the appellant, does not exclude him from his share of the provisions stipulated by his father in his contract of marriage to the children of the marriage: and therefore, it is hereby ordered and adjudged, that the appellant do claim so much thereof as will compensate his share of the 12000 merks, provided by the said contract, and, that in order to ascertain the appellant's share thereof, both parties do inform the Court of Session therein, according to the courses of that
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Counsel: For Appellant,
W. Noel,
A. Hume Campbell.
For Respondent,
William Hamilton,
W. Murray.
This reversal is not noticed in any of the reports of the case.