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Scottish Court of Session Decisions >>
Campbells v Campbells. [1738] Mor 13004 (16 December 1738)
URL: http://www.bailii.org/scot/cases/ScotCS/1738/Mor3013004-127.html Cite as:
[1738] Mor 13004
Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XIV.
Father's Power of distributing among his Children, or the Heirs of a Marriage, the Subjects provided to them.
Campbells v. Campbells
Date: 16 December 1738 Case No. No 127.
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Colonel Campbell being bound in his contract of marriage to secure the sum of 40,000 merks, and also the conquest during the marriage, to himself and spouse in conjunct-fee and liferent, and to the children to be procreated of the marriage in fee, did purchase the estate of Burnbank during the marriage, taking the rights thereof to himself, his heirs and assignees, and, upon death-bed, did execute a deed, settling both the heritable and moveable estate upon his eldest son, with the burden of certain provisions in favour of the younger children. In a reduction of this settlement, at the instance of the younger children, it was pleaded for them, That they were creditors per capita, each entitled to an equal share; and, supposing the father to have a power of division, it was irrational to leave the whole to one, burdened with small provisions in favour of the rest. It was pleaded in behalf of the defender, That an obligation granted familiæ, makes the family, as a body politic, creditor, so as to restrain alienations extra familiam, but does not make each a creditor per capita, to restrain the father from giving the whole to any one he pleases. The Lords found, That each of the children was entitled to a share in the special sum and conquest, but that the father had a power of division of the sum and conquest among his children in such manner as might be found rational, and therefore that he might lawfully acquire a land estate, and take the rights thereof to his eldest son, and might also dispone his moveable estate to him, with the burden of rational provisions to his younger children. See Appendix.
