Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT

Captain Charles and Mary Campbell
v.
Elizabeth Campbell,

Date: 21 December 1739
Case No. No.14.

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The Lords found that Colonel James Campbell being Bound by his contract of marriage to secure 40,000 merks, and the whole conquest to himself and his spouse in conjunct-fee and liferent, and to the bairns of the marriage in fee, that each of the children are entitled to a share of the said special sum and conquest, and that the Colonel's taking his whole land-estate and disponing his whole moveables to his eldest son, one of the said children, was not a legal implement of the above provisions; but found that the Colonel had a power of division of the sum and conquest so provided amongst his children in such manner as might be found rational; and therefore found he might lawfully acquire a land-estate and take the right thereof to his eldest son, and might also dispone his moveable estate with the burden of rational provisions to his children; and found that as the Colonel had himself the power to settle and determine the extent and proportions of the provisions to the younger children, he might likewise commit that power to any other person; and found that the Colonel having by his bond of provision 16th January 1713, obliged himself in the event therein mentioned, to pay to his younger children such sums as the Duke of Argyle and Earl of Ilay, or survivor of them should appoint, that power was a lawful power and does still subsist, and therefore superseded further proceeding till the 5th June, that in the mean time either party may apply to them to determine, or declare their not acceptance of that power, 16th (apud me 15th) December 1738; 5th January 1739, and they having declined to execute these powers, the Lords found that their powers are not devolved on this Court tanquam boni viri, and that the Colonel having settled his whole estate on his eldest son without making effectual provisions for his younger children, his settlement is reducible, and the pursuers are each of them entitled to an equal share of his estate in the terms of the contract.