Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION III.

Donatio non præsumitur.
Subject_3 SECT. VI

Tocher granted in a Contract of Marriage how far presumed in Satisfaction of former Provisions.

Dows
v.
Dow

Date: 24 June 1681
Case No. No 155.

Found again that a tocher granted by a father to his daughter is to be interpreted as in satisfaction pro tanto of all former special provisions, tho' not so expressed; but not of any undetermined general claim, such as legitim, or a clause of conquest, which is only in hope. See Gibson against Marjoribanks, No 162, infra.

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The deceased John Dow of Ironhall gave a bond of provision in favour of his children, bearing, That he had disponed his whole estate, heritable and moveable, in favour of his eldest son, and his other heirs male, whereby his other children would have no provisions; therefore he obliges him and the heir-male of his body, to pay them such sums in full satisfaction of all portion-natural, and bairn's part to which they could succeed by his death, and in case of the failing of the heir-male of his body, he obliges himself and his other heir-male, to pay the same portions, and to add so much more; he did also subjoin holograph postscripts, making further additions, whereupon his four daughters pursue his heir-male, who was not of his body, but of a far distant relation, to pay these provisions both in the bond and postscript. The defender alleged, That the postscripts, though they were proved holograph, cannot instruct their date to have been before the defunct took the sickness of which he died. It was answered, That the question is not here contra tertium, but against the heir, who is reputed as eadem persona cum defuncto, and the defunct died suddenly; and these provisions are no voluntary deed, but a natural obligation upon fathers to provide for their children. It was answered, That the heir is tertius quoad deeds on death-bed, and as to these may quarrel his predecessor's deeds, and is not obliged to perform them; and that privilege of the heir hath been ever sustained against provisions to children, it being the great security and interest of all dying persons to be free from importunity of wives, children, and relations, seeing they can do nothing in that case, but dispose upon a share of their moveables, which the law allows; and the same importunity that might induce them to do deeds prejudicial to their heirs, might induce them to antedate the same deeds, which being holograph, could have no mean to redargue the date. The Lords found the holograph postscripts did not prove their date to be before the defunct's sickness, unless the date were adminiculated by other writs with witnesses, or by witnesses who saw the writs before the defunct contracted the sickness of which he died. The defender further alleged, Absolvitor for such of the daughters, who, after these bonds, were married, and received a tocher from their father. It was answered, That non relevat, unless the tocher bore in satisfaction of all former provisions, for debitur non præsumitur donare, takes no place in provisions by parents, the presumption being stronger from their natural affection, that posterior provisions: are additions. It was replied, That this holds not in tochers and contracts of marriage, which are ever presumed to be in satisfaction of all former provisions; for parents would never omit to accumulate their children's provisions in their contracts, that the reciprocal conditions might be the better.

The Lords found the pursuers' tochers provided by their father in their contracts of marriage, were in satisfaction of all former provisions, though not so expressed; but if they were contracted before their brother died, that they were not thereby excluded from the additional provision incident thereafter by the succession of the other heir-male. See Proof.

Fol. Dic. v. 2. p. 146. Stair, v. 2. p. 883.