Scottish Court of Session Decisions

Subject_1 FORISFAMILIATION.

Jean Begg
v.
Jean Lapraick

1737, Nov. 18.
Case No. No. 1.

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The Lords found, that Jean Begg having accepted of a provision in full satisfaction of all portion natural or bairns part of gear, without mention of executry dead's part or moveables she might succeed to by and through her father's decease, does not exclude her from a share of her father's dead's part as one of his executors, he having died intestate; and therefore found that she hath right to an equal share in the dead's part with her brothers and sisters, and that the same falls to be divided amongst them secundum capita; and further found the proviso, that the said Jean Begg was only to be a bairn in the house with the rest of his daughters but not in the least with his sons does subsist and is effectual in favour of the sons, notwithstanding of the father having died intestate, and of his having made no deed of provision in favour of his sons; and therefore found that the sons have right to the same legitim or bairns part as if Jean had not existed at the time of her father's decease; and in respect that Jean is only provided to be a bairn in the house with the rest of the daughters, and that the father could not nor hath not by any clause in the contract prejudged the daughters as to their legal share in the legitim, found that each of the daughters excepting Jean must have an equal share in the whole legitim according to the division of law amongst the whole children including Jean, and therefore found, that after deducting the shares of the sons as if Jean had not existed at the time of her father's death, and after allowing to each of the other daughters such share as would belong to her according to the division of law, taking in Jean as a bairn of the house, that the remainder of the bairns part or legitim only belongs to Jean and no more; and found that Jean is not obliged to collate her tocher, but hath right to the same as a præcipuum, and remit to the Ordinary to proceed accordingly.

Upon this case sundry questions did arise that are all determined by the above interlocutor. I own I doubted as to the dead's part, that by our practice accepting a provision in satisfation of legitim without expressing executry or moveables was a forisfamiliation, and excluded that bairn in competition with bairns in family from any share of the dead's part as well as of the legitim. If that was the law, in this case the division of the dead's part must have been in the same proportion as of the legitim. But all the rest of the Lords were of the opinion of the above interlocutor. I likewise doubted whether the parties intended any more than to reserve to the father a power to provide his sons ad libitum, but I own the last part of the clause is very strongly expressed, and the Lords could not find any way of extricating it so as to answer the parts of the clause, and make it consistent with law, other than by the above decision.