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Scottish Court of Session Decisions >>
M'Dougal v Barbara M'Dougal and her Husband. [1739] Mor 13033 (12 July 1739)
URL: http://www.bailii.org/scot/cases/ScotCS/1739/Mor3013033-144.html Cite as:
[1739] Mor 13033
Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. XVII.
What Deeds are held onerous.
M'Dougal v. Barbara M'Dougal and her Husband
1739.
July12. &
1740.
July. Case No. No 144.
Provision to heirs of a marriage, onerous in competition with heirs of a former investiture.
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The estate of Mackerston was in the year 1669 settled by Henry M'Dougal then of Mackerston, upon Thomas M'Dougal his son, and the heirs-male of his body, &c. by simple destination, (but with a power to alter) on which Thomas was infeft.
On the death of Thomas, his son Henry was served heir to him, and infeft. In the year 1715, Henry being under no limitation by the said investiture, executed a new settlement by procuratory of resignation, in favour of himself and the heirs-male of his body, which failing, of Barbara M'Dougal his daughter, and the heirs-male of her body, &c.
In the year 1722, Henry dying without issue-male, was succeeded by his daughter Barbara, who served heir to him on the settlement 1715; and in 1733, in her contract of marriage with Mr George Hay, who, on his part, contracted L. 1500 Sterling, to be applied towards extinction of the debts of Mackerston, she on her part disponed the said estate to her future husband in liferent, and to the heirs-male of the marriage in fee.
A discovery having been made of a bond of tailzie, dated in 1684, by Henry M'Dougal, father of Thomas, in virtue of the reserved power to alter in the foresaid settlement anno 1669, and whereby the estate was of new settled on his said son Thomas, and the heirs-male of his body, which failing, &c.; but containing prohibitive, irritant, and resolutive clauses, against altering the order of succession, alienating the estate, or contracting of debt;—upon this tailzie, Thomas M'Dougal, uncle to the said Barbara, and immediate younger brother to her father Henry, and as such heir of the tailzie 1684, brought a reduction of the settlement made by his elder brother Henry on his daughter Barbara in 1715, and consequently of the disposition made by her in her contract of marriage in favour of Mr Hay her husband, and the issue-male of the marriage.
The Lords found, “that George Hay having entered into a marriage-contract with Barbara M'Dougal, who stood seized in the lands by virtue of a progress of infeftments, containing no limitation upon her father, and having become bound to advance L. 1500 Sterling towards payment and extinction of the debts of the family, in contemplation of, and upon the mutual agreement of the estate's being settled upon him in liferent, and the heirs-male of the marriage in fee, the contract was fully onerous, and therefore must be available, and subsist according to the conception thereof in favour of the said George Hay and the heirs-male of the marriage, notwithstanding the latent tailzie 1684, the same having never been recorded, nor any infeftment nor document whatsoever taken thereupon; and therefore assoilzied from the reduction.”
And upon advising petition and answers, and after a hearing in presence, the Lords “adhered.”
Fol. Dic. v. 4. p. 183. Kilkerran, (Provision to Heirs, &c.) No 6. p. 458.
*** See a case between the same parties, No 172. p. 10947. voce Prescription.
