Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION X.

Deeds betwixt Husband and Wife during marriage.
Subject_3 SECT. V.

Whether Liferent Provisions to Wives stante matrimonio be revocable.

Ranking of the Creditors of Kinminity

Date: 20 January 1756
Case No. No 343.

An obligation in a contract of marriage, that a wife should pay a sum yearly out of her jointure to the heir-male of the marriage, and to the heir-male of his body allenarly, found not to import a restriction of the liferent, so as to increase the defunct's bereditas jacens affectable by creditors, and the heir-male was found to have right to the said sum without representing his father.

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In the contract of marriage betwixt Alexander Sutherland and Mary Sutherland, Alexander settled his whole estate upon himself and the heirsmale of the marriage, &c. in common form, and a competent jointure upon his wife; after which followed this clause:

“Provided always, likeas it is here by specially provided and declared, That in case there shall be heirs male of the said marriage, then, and in that case, the said Mary Sutherland shall be bound and obliged, as by the acceptation hereof she binds and obliges her, to pay yearly to the said heir-male, and failing of him, to the heir-male of his body allenarly, but to none of the said Alexander Sutherland his other heirs, the sum of 200 merks Scots money, and two chalders of meal or the price of the said two chalders in money, conform to the fiars of the commissariot of Murray, in the option of the said Mary Sutherland. And further, if it shall happen the said Mary Sutherland to marry another husband after the said Alexander his decease, then, and in that case, she binds and obliges her, to pay yearly to the said heir-male, and to the heirs-male of his body, but to none of the said Alexander his other heirs, the sum of 100 merks Scots money, and one chalder of meal, or the price thereof, in manner above-mentioned; and that by and attour the said 200 merks and two chalders above written, and that out of the first and readiest of the mails and duties of the said liferent-lands; with the payment of which money and victual, in the respective events aforesaid, the said liferent-lands and this present right are burdened.”

At the time of this contract, Alexander was clear of debt, and Mary brought a fortune with her suitable to the provisions.

Afterwards Alexander contracted great debts. Of the marriage there was an heir-male, who, upon Alexander's deaths renounced to be heir to him; the creditors of Alexander took decreet cognitionis causa, and brought the estate to a sale.

In the ranking of the creditors, Mary Sutherland claimed to be ranked for her whole jointure. The creditors objected, That, in terms of the proviso, there being an heir-male of the marriage, she should be cut off from 200 merks and two chalders of meal yearly of her jointure.

The creditors laid their plea thus: That the proviso was no other thing than a restriction of the wife's jointure in a certain event, and of consequence an enlargement of the father's fee in that event; but, as the fee of the estate was provided to the heir-male of the marriage, only as a right of succession to his father, so the benefit of the restriction was provided to the heir-male only as a right of succession in the same manner; and both the restricted sum and the fee of the estate being provided to him only per expressum as heir-male to his father, he has no more interest in competition with his father's creditors in the former than he had in the latter. He cannot take either except as heir, but to be heir of line he has already renounced; and, if he claims as heir of provision, the sum which he takes must be subjected to his father's debts.

Answered for Mary Sutherland; The provision was not a restriction of the wife's jointure to enlarge the husband's fee, but merely an obligation upon the wife to aliment the heir-male after his father's death. The mother brought a suitable portion with her, she had a right to demand this aliment for the heir; the father was clear of debt, he had a right to give it; the present creditors saw both him thus denuded and her thus bound, and yet contracted with him. If a third party had settled an annuity upon the lady for behoof of the heir-male of the marriage, or if Alexander had settled an annuity upon a third party, under an obligation to pay a part of it to his heir-male, no creditor could have touched it. It would be odd if parents were the only persons barred by the law from taking care of their own children, when they follow out the same methods which would protect their own gifts to the children of others. To entitle the heir-male to take the aliment in question, there is no occasion for his connecting himself with his father. In the proviso it is only the hæres designative that is intended, it is not the hæres actu; it is sufficient for him to stand in such a relation, that he might be entitled to serve to Alexander if he thought fit,

“The Lords found, That the provision in the contract of marriage to the heir-male does not diminish the lady's liferent, nor does it belong to the creditors; and therefore preferred the lady to the Creditors for her full liferent,” See Provision to Heirs and Children.

Reporter, Justice Clerk. For the Creditors, Burnet. Alt. Ferguson. Clerk, Gibson. Fac. Col. No 177. p. 264.