Scottish Court of Session Decisions

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

Import of a Provision to Bairns beside the Heir.

Elizabeth and Anna Boyds
v.
James of Boyd of Temple

Date: 6 January 1670
Case No. No 18.

In a contract of marriage, the husband bound himself to provide 20,000 merks to the bairns of the marriage beside the heir. There were only two daughters who offered to renounce and betake themselves to the provision. Not permitted.

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James Boyd of Temple, in his contract of marriage, and in a bond of provision relative thereto, became obliged to pay to the bairns of the marriage, beside the heir, the sum of 20,000 merks at their age of seventeen years, reserving his own liferent. Elizabeth and Anna Boyds, the only bairns of the marriage, now after their mother's death, and age of seventeen, do, with concourse of their husbands, pursue their father to employ the said sum of 20,000 merks to himself in liferent, and them in fee. The defender alleged, Absolvitor, because the pursuers can have no interest in this provision, being expressly conceived in favours of the bairns of the marriage, beside the heir; ita est, The pursuers are the heirs apparent of the marriage, there being no sons, and will succeed to the estate by the contract, and so cannot demand the provision made to the other bairns; for if there had been a son of the marriage only, he could not have claimed this clause; and the pursuers can be in no better case than he. It was answered, That in contracts of marriage, the meaning of the parties is chiefly to be respected, which has been, that in case there were an heir-male, or son of the marriage, this sum should belong to the remanent bairns, and therefore it is conceived under the name of heir in the singular number, and being introduced in favour of the daughters, it ought not to be interpreted against them, but that they may renounce to be heirs, and be satisfied with this provision only; otherwise they may be absolutely excluded, the father's estate being apprised by John Boyd, whose legal is near to expire, and who makes use of the father's name without his warrant. It was answered, That law allows not in any contract to make up new clauses; and seeing the provision is express in favour of the bairns beside the heir, it can never quadrate to these pursuers, who are the only heirs.

The Lords found the provision not to be extended to the pursuers; but because it was suggested that the father did not propone it, they desired the Ordinary to enquire, whether the pursuit was for the father, and by his warrant, that then they might consider, whether John Boyd, the appriser, could have interest to propone that allegeance.

1671. December 20.—By contract of marriage betwixt Boyd of Temple and his wife, the lands of Temple and others are provided to the heirs of the marriage, and there is 20,000 merks provided to the bairns, beside the heir, which the husband is obliged to employ and re-employ for them, reserving his own liferent, whereupon they have obtained decreet against their father for implement; and there being an inhibition upon the contract, they pursue a reduction of certain bonds granted by their father in favour of John Boyd after the inhibition, and of all infeftments following thereupon; who alleged, Absolvitor, because the clause in the contract can only take place in case there were bairns beside the heir; ita est, There are only two daughters of the marriage, and the wife is dead, which two daughters are not beside the heir, for they are the only two persons who can be heirs of the marriage, and though they have obtained decreet against their father, yet it is clear thereby to be of consent, and that the father disclaimed this defence. It was answered, That albeit the clause runs in the terms foresaid, yet contracts of marriage being optimæ fidei, must be interpreted according to the meaning of the contractors; and it cannot be thought, that a father who provided this unusual clause in favour of the bairns of the marriage, beside the heir, though there had been an heir who was provided to the estate, that he would not much more have secured that 20,000 merks for all they could claim, both as heirs and bairns; for now the estate is apprised, and if this clause have no effect, they will get nothing. It was answered, That unusual clauses ought not to be extended, and there is no consequence to make up new articles of a contract, though they were more reasonable than those expressed; and for the clause itself, it can have no doubtfulness, there being a provision of the lands to the heirs of the marriage, and of this sum to the bairns beside the heir, so that the contractor's meaning has still been, that the heir should have the hope of succession, which was much better than this sum at that time, though by accident it may become worse; neither is it of any importance, though the pursuers should renounce to be heirs, because that can never make them bairns beside the heir.

The Lords found, That the clause could have no effect, unless there were bairns beside the heir, without prejudice to the decreet against the father, in regard of his consent and disclaiming this defence.

Fol. Dic. v. 2. p. 278. Stair, v. 1. p. 658. & v. 2. p. 28. *** Gosford reports this case:

Boyd of Temple being obliged by contract of marriage to provide the bairns of the marriage by the heir, each of them to 10,000 merks, his two daughters, after the death of their mother, did pursue their father for securing each of them in 10,000 merks after his decease, and that because his estate was comprised by John Boyd, and the legal thereof near expired. It was alleged for the father, That the two daughters being themselves the apparent heirs, could not crave the benefit of that clause of the contract which was conceived only in case there should be an heir, and other bairns by the heir. It was replied, That the daughters being now majors, were content to renounce to be heir, and being bairns, had good action to pursue for the benefit thereof.

The Lords finding the daughters' case very favourable, and if the legal of their comprising should expire they would be altogether prejudged, both of their portions and of their father's heritage, did recommend to the father and compriser to take some course for selling of the lands, that the comprising might be satisfied, and they secured in the remainder after the father's death; but did incline not to sustain their interest upon the renunciation to be heir in case they had given their interlocutor in jure anent the conception of the clause.

Gosford, MS. No 220. p. 88.