Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XII.

The onerosity of Provisions made in contracts of marriage.

Aikenheads
v.
Aikenheads

Date: 26 June 1711
Case No. No 94.

A man provided the children of his first marriage in 25,000 merks, and those of his second in 36,000 merks. He had funds sufficient for the whole, but at his death they fell short. The provisions to the second family were reduced, so far as prejudicial to the first; a competency still remaining for the second.

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The deceast Sir Patrick Aikenhead commissary-clerk of Edinburgh, by his first contract of marriage with Grissel Durham, provides the children to 25,000 merks, of which there are four bairns yet living. In his second contract of marriage with Sarah Sharp, he provides the children of that marriage to 33,000 merks, and by a posterior bond, yet prior to the marriage, in 3000 merks more; and of this bed there were two children procreate. When he dies, the utmost extent of his estate is found to be L. 36,000 Scots, estimating his houses at 12 years purchase; which falls 7000 merks short of the provisions in the two contracts, which extend to 61,000 merks, and his estate but 54,000 merks, so the question was, on which of the two marriages the diminution and loss should fall? And the children of the second bed craving that the first should bear a proportional abatement of their 25,000 merks, they reclaimed, and raise a reduction of the second contract, as exorbitant and beyond his ability and estate; and insisted on this reason, that esto a man cannot be hindered to enter into a second contract and provide for his new wife and bairns, yet it must be no more than what is necessary and rational, without derogating from his prior obligements in his first contract; for which see 16th June 1676, Mitchell contra Littlejohn, Stair, v. 2. p. 426. voce Deathbed, and Stair, tit. Heirs;* who mentions the two famous cases recorded by Craig of the three sisters Aikmans, and Isobel Baron;† and the second bond for 3000 merks, not being in the contract of marriage, ought to be reduced as a clandestine fraudulent deed, and contra fidem tabularum nuptialium; and in a competition betwixt bairns of sundry marriages it has been always found that provisions in a first contract cannot be impaired nor evacuated by posterior grants in favours of children of a second bed, as appears from 19th June 1677, Murrays, Stair, v. 2. p. 523. voce Provision to Heirs and Children; and so became quarrellable on the act 1621. And none will doubt but 36,000 merks was a most extravagant provision in æstu amoris to the second bairns, when he only gave 25,000 to the first; and his estate cannot satisfy both; and the first children are the more ancient creditors; and if there be any eventual loss, it is more just it fall on the second, especially considering the inequality of the provisions; and that these excessive gifts are sometimes procured delinimentis et instigationibus novercalibus. Answered for the bairns of the second marriage, That their mother's contract can never be quarrelled as excessive; for at that time he had an estate sufficient to satisfy both; and if, ex post facto, it was otherwise, the son of the first marriage cannot impugn his father's deeds, he being heir, and bound to warrant and ratify them, especially seeing he got several accessions to his fortune, and offices during the second marriage, which he had not in the time of the first; and the author of the loix civiles, in his preface about succession, thinks the children of all the marriages are equally creditors to the father, and should come in pari passu; as the Lords did lately with George Marshall's bairns, voce Adjudication, p. 47. And the providing of children is never accounted a fraud; and therefore, l. 1. § 10. D. Si quid in fraud. patron. allows a libertus dotare filiam quo non videtur fraudare patronum, who had, by the Roman law, the right to his slave's succession, though manumitted, and might rescind any deed to his prejudice; but the providing of children was not reckoned amongst these fraudulent deeds. And notwithstanding of any destination to the bairns of the first marriage, the father still continued

* Page 480. edition 1759.

† Voce Provision to Heirs and Children.

fiar, and retained the power of disposal to rational ends, being not only bound jure naturæ to provide for his wife and children, but likewise obliged civiliter by their mother's contract-matrimonial. And as to the difference made betwixt the provision in the contract, and the separate bond of 3000 merks, the distinction is founded on no material justice nor reason; for it is before the marriage and pars contractus and is not contra, but only præter pacta dotalia, and is as due as the 33,000 merks in the principal contract, and of equal force and authority therewith. The Lords reduced the second contract, in so far as might be extended to diminish any part of the 25,000 merks provided in the first; and found that sum behoved to be made up to the bairns of the first marriage, especially considering there was a competent provision suitable to his estate left behind to the children of the second marriage. See 14th November 1711, inter eosdem, Fount. v. 2. p. 671. voce Tutor and Pupil.

Fol. Dic. v. 1. p. 73. Fountainhall, v. 2. p. 650. *** Forbes reports the same case thus:

Sir Patrick Aikenhead having, in his contract of a second marriage with Sarah Sharp, provided 33,000 merks; and, in a separate bond, a day posterior to that contract, and before the marriage, 3000 merks more; in the whole 36,000 merks to the children of that marriage: The children of the first marriage, (to whom 25,000 merks was provided in the contract with Grissel Durham, their mother,) raised reduction of the provisions in favours of the children of the second, upon this ground, That Sir Patrick Aikenhead's estate, at his death, did not exceed 36,0001.; and therefore the provisions made by him to the defenders ought to be reduced as extravagant and in fraudem of the pursuers, who were lawful creditors for the sum provided to them in their mother's contract.

Alleged for the defenders: Their provisions cannot be reduced, because their father, at the granting thereof, had a visible estate sufficient to satisfy all his children's provisions, albeit it fell short ex eventu; which loss must affect the pursuers and defenders equally and proportionably, according to the extent of their provisions, Craig, Lib. 2. Dieg. 14. Pag. 238. Stair, Instit. Tit. Heirs, p. 480. § 15. And in a late case of George Marshall's Children, voce Adjudication, p. 47. the children of both marriages were brough in equally, according to their provisions, though there was but one daughter of the second marriage who was provided in the double of what was allotted to any child of the first marriage. For the father, notwithstanding the provisions made to the children of the first marriage, continued fiar, and could dispose of his means for such an onerous and reasonable cause as provisions to children of a second marriage. And by the civil law, Libertus filium dotando non videtur fraudare Patronum.; quia pietas patris non est reprehendenda, L. 1. § 10. ff. si quid in fraud. Patroni.

Replied for the pursuers:—Albeit the Lords have found that, notwithstanding of a general provision of conquest to the children of a marriage (which is a sort of provision by succession) the father continued fiar, and could dispose of it in favours of wife or children of a subsequent marriage: Yet special provisions of particular sums, made to children of a first marriage, cannot be evacuated or impaired by posterior grants to children of a second, June 19, 1677, Murrays contra Murray, Stair, v. 2. p. 523. Voce, Provision to Heirs and Children; especially if these grants be exorbitant. Now, after deducting the 25,000 merks, there's more than a competency behind, to provide the two children of the second marriage. The authorities adduced by the defenders, to prove that the children in this case must come in proportionably, acccording to their respective provisions, are not to the purpose. For my Lord Stair, p. 460, (480.) speaks only of bonds granted to several heirs portioners, which being of the nature of prælegata in the civil law, make them mutually creditors and debtors to one another: Whereas children of a first marriage are not heirs, but creditors with respect to children of a second. Again, though a rational tocher given to a daughter, was not reckoned in the civil law to be a deed in fraudem Patroni, an extravagant tocher was quarrellable as such. And the Lords bringing in Marshall's children of a first marriage who had but slender provisions, pari passu with his children of a second, whole provisions were exorbitant, can be no argument for sustaining excessive provisions here in favours of children of a second marriage, in prejudice of a moderate provision made to those of the first. For non est consentiendum parentibus qui injuriam adversus liberos suos in testamento inducunt: Quod plerumque faciunt, maligne circa sanguinem suum inferentes judicium, novercalibus deliniementis instigationibusve corrupti, L. 4. ff. de inofficioso testam.

The Lords sustained the reason of reduction against the contract and bond libelled, in so far as they are prejudicial to the sum of 25,000 merks provided to the children of the first marriage: There being a further competency remaining to the children of the second marriage.

Forbes, p. 510.