Scottish Court of Session Decisions

Subject_1 PROVISION to HEIRS and CHILDREN.
Subject_2 SECT. V.

The Husband being bound in a contract of marriage to provide the issue of the marriage, the heir or children, as creditors, may insist for implement without a service.

Captain Charles Campbell
v.
Representatives of His Brother Archibald

1742. January.
Case No. No 29.

In what cases a service is necessary to heirs of provision in a contract of marriage?

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Colonel James Campbell, in his contract of marriage, became bound to secure a special sum out of the conquest during the marriage, “to himself and spouse, in conjunct fee and liferent, and to the bairns, to be procreated of the marriage in fee, which failing, to his heirs and assignees.” The Colonel died without performing his obligation, leaving three sons, Archibald, Charles and John, and a daughter Mary. John, having died without claiming his share of the said provision, it was disputed among the surviving children, by what rule the subjects contained in the said provision should be divided amongst them? For Charles it was pleaded, That an heir of provision, in a contract of marriage, is eo ipso creditor, requiring no service to vest the right in him; that the jus crediti established in John by the said provision, must, after his death, transmit to his heir Charles, who consequently is entitled to draw John's share, over and above what belongs to himself jure proprio. Archibald being dead, it was pleaded for his Representatives, that a provision in a contract of marriage does not vest in the heir or heirs without a service, and therefore that John, who died without a service, can transmit nothing to his representatives, which must produce a tripartite division. And, to support this side of the debate, the following chain of reasoning was employed.

It was premised, that an obligation to pay certain sums to children of a marriage, at a certain age, or at marriage, must be distinguished from an obligation to settle a subject, whether land or money, upon the husband and wife, in conjunct fee and liferent, and upon their children in fee. In the former case, the children are creditors and fiars of the stipulated sums, and therefore a service is no more necessary, than where a bond of borrowed money is granted to them.

The other case, which is that under consideration, is more intricate; and to clear it, the condition of the children shall first be considered, and next, that of the father. The children acquire several powers or faculties by such a settlement; 1mo, They have a faculty to compel their father, or whoever is the obligant, to secure the sum in terms of the contract, and this faculty they have even during the father's life; 2do, After the money is secured, whether upon land, or by the bond of a responsal debtor, the children are entitled to challenge every alteration or alienation made by the father, contrary to the bona fides of the contract; 3tio, Supposing no contravention, the children, as heirs of provision, are entitled to succeed, and to enjoy the subject.

The two first faculties mentioned, are no more than what belong to every heir of entail, immediate or remote, in order to preserve the subject entailed for their use. And it is with regard to these faculties, that heirs of a marriage, or of provision, are understood to be creditors, Stair, Tit. Heirs, § 19. These faculties they can exercise without a service; for the action is competent to the immediate substitute, during his father's life, when he cannot be served, and is also competent to a remoter substitute, who possibly may never succeed. But then, it must be observed, that privileges of this sort, which do not suppose the fee or property to be in the pursuer, are no other than personal faculties or powers, which, not being derived from any predecessor, require not a service: each substitute in the settlement has, by the entail, a title to oblige the obligant to fulfil, and also can challenge any deed done against the settlement; and he must, consequently, have an action to make good his claim. If this needs any explanation, it will be evident by a familiar example. An heir-apparent is entitled to reduce deeds done by his predecessor upon death-bed. This is no jus crediti nor fee, in the heir-apparent, derived from an ancestor; it is a personal privilege, which belongs to him in his own right; and, if he die without exercising this privilege, it dies with him. The like action is indeed competent, at the instance of the next heir-apparent; but it is competent to him in his own right, not as deriving right from the deceased heir-apparent, the rule in law being, that a proprietor, upon death-bed, cannot hurt any of the substitutes in his estate, whether immediate or remote.

As to the last-mentioned power, or faculty competent to the children, which is to succeed to their father, as heirs of provision, it must be evident, supposing the sum secured to be existing, that they cannot make that power or faculty effectual, otherwise than by a service. The only question is, supposing no performance of the obligation during the obligant's life, whether they can insist against his heirs of line, to pay the sums to them directly as creditors, without the intervention of a service? To handle this point with precision, two different cases must be stated. It happens commonly in contracts of marriage, that the husband's father, if he be alive, and hold the estate, becomes bound to provide a certain subject, money or land, to his son the husband, and the son's wife, in conjunct fee and liferent, and to the heirs or children of the marriage in fee. In this case, the husband is the institute or creditor in the obligation, and therefore, whatever action the children of the marriage may have to force performance in their own right, they never can enjoy, nor hold the subject, but in the right of their father, the institute or creditor. He was entitled to enjoy the subject, in the first place, and they only as deriving right from him. Supposing next the husband himself to be obligant, he, in that case, supports two different characters; he is debtor or obligant; he is, at the same time, creditor or institute in the entail; and, therefore, though the children, in their own right, may have an action against him qua debtor, to perform his engagement; yet, as they are but substitutes, they cannot hold or enjoy the subject, but as deriving right from their father, qua institute, and consequently a service is necessary.

And thus the question is in effect answered. If the subject be secured, in terms of the contract, it is agreed, that a service is necesssary: The same must obtain, though the subject be not secured. The children, in this case, have two separate faculties to be separately exerced: They have an action to force performance, which they have in their own right without a service; but then, as the father's representatives are not bound to make payment directly to them qua creditors, but substitutes to their father, they must be served as heirs of provision, in order to have the subject established in them, as much as they would be bound to do if the subject had been secured during the father's life.

The fallacy of the argument urged against the necessity of a service, will now plainly appear. “It is admitted, that a service is necessary when the sum or subject is actually secured in terms of the contract of marriage; but that while the obligation stands unperformed, the bairns are creditors; that, when the action is pursued against the father, it can have no other effect than to oblige him to perform, that is, to secure the subject, in terms of the contract, to himself in fee, and to the children; but that, when the action is laid against his representatives, it resolves into an action for payment, because the father's fee dies with him, whereby the bairns of the marriage fall into the full right. This is the very reasoning upon which the Lords, 3d February 1732, Campbell contra Duncan, No 39, p. 12885. in a case similar to the present, sustained process for payment, at the instance of an assignee of an only child of the marriage, after the child's death, and found no necessity for a service.” This reasoning is obviously inconclusive. It is true, that the father's fee dies with him, and the bairns of the marriage fall into the full right; but how do they fall into the full right? Here lies the fallacy. They do not fall into the full right as fiars or proprietors: They fall into it as any other heir does after his predecessor's death; that is, they have access to make up their right to the subject by a service, and thereby to establish a fee or property in themselves.

The death of Charles Campbell prevented the determination of this point; and the controverted matters were afterwards finished by a transaction. However, the Court will probably hereafter find a service necessary, as they have hitherto done, except in the single case of Campbell against Duncan.

Rem. Dec. v. 2. No 25. p. 39.