Scottish Court of Session Decisions

Subject_1 PROVISION to HEIRS and CHILDREN.
Subject_2 SECT. XII.

Provisions to Children when Prestable. - Provisions in a certain Event.

Oliphant
v.
Oliphant

Date: 10 February 1704
Case No. No 93.

A man was bound by contract of marriage to secure a sum to the children. There was one daughter. He married again. - Action refused on the contract to the daughter during the father's life. There were no friends named in the contract at whose instance execution should pass.

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Margaret Oliphant, and Charles Robertson her husband, and John Stewart their assignee, pursue William Oliphant, merchant in Edinburgh, her father, on this ground, That, by the contract of marriage betwixt the said William, and Christian Scott, her mother, he, for the tocher received, obliged himself to stock and secure to the bairns of the said marriage 8000 merks; and subsuming, that she is the sole child of that marriage, conclude that he may be decerned to perform to her the said obligement. Alleged, This being only a destination of succession in a contract of marriage, it is not obligatory during his life, nor can it produce any effectual action till his decease, especially he being fiar of the sum, and can uplift and dispose at pleasure. 2do, By an express clause in the said contract it is specially provided, that the obligement in favour of the bairns shall not hinder and obstruct the said William to employ it in the exercise of his trade as he thinks fit. Answered, These provisions in favour of children of a first marriage, cannot be elusory and of no effect, else a father, by marrying a second wife, may delinimentis novercalibus give all to the second bairns, and defraud the first, though law does not so bind up parents from second marriages but they may give moderate and rational provisions to a second wife and her children; for contracts-matrimonial are uberrimæ fidei and ought to be punctually and faithfully performed; and, in a competition the first contract and first bairns ought always to be preferred, as being the first creditors; and here the father's aversion arises from the influence of his second wife, though they design no straitening to him, but only that he may give them some security for the said 8000 merks, at least so much of it as the Lords shall think suitable to his circumstances, to take effect only at his death: A contract of marriage being a synallagma, containing mutual prestations, the wife bringing a tocher, and the husband making a proportional settlement for her and the children of the marriage, and it ought not to be in the father's power to frustrate and evacuate these obligements. The Lords considered they have oft reduced exorbitant provisions made in posterior contracts, where they were prejudicial to the first, and that the children of the first bed had a jus quæsitum, except where he came in as heir, which tied him præstare factum paternum; and if this contract had nominated persons at whose instance execution might pass, they could have charged for implement; but the father here being a merchant, and having reserved to himself a power not only of administration, but of disposal for carrying on his trade, and that it was not pretended he was vergens ad inopiam, (in which case the Lords would have obliged him to secure her), therefore they refused to sustain action against him during his life; for they thought merchants might be straitened by such processes, and forced to give over their trade; and it was pessimi exempli for children to pursue their parents in such a circumstantiate case, and that it was refused both to John. Kennedy's children and Thomas Wylie's.

Fol. Dic. v. 2. p. 286. Fountainhall, v. 2. p. 222.