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Scottish Court of Session Decisions >>
Henderson v Hendersons. [1782] Mor 11682 (26 July 1782)
URL: http://www.bailii.org/scot/cases/ScotCS/1782/Mor2711682-344.html Cite as:
[1782] Mor 11682
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Henderson, by his marriage-contract, made certain provisions in favour of the children of the marriage. Afterward having acquired additional funds, he made a total settlement of his effects on four children then existing, reserving therein a power of revocation. Several years afterward, he conveyed an heritable debt to his three elder children, in consideration of their exonering him of all the provisions in the contract of marriage, or all they could claim through his marriage with their mother, “or any provision heretofore conceived in their favour;” and in these terms they granted him a discharge of all such provisions. On Henderson's death, the total settlement in favour of the whole children was found unrevoked. The youngest child, who had no share in the conveyance of the heritable debt, claimed the whole of her father's succession, as executrix, exclusively of her brothers and sister; and pleaded, That they were excluded by the discharge they had granted, of all claim to ‘any provisions heretofore conceived in their favour.’ The Lords found, That as the total deed of settlement was not delivered, but remained latent in the granter's repositories at the time of the children executing the discharge and renunciation, no jus crediti could thereon accrue to them till their father's death, and consequently it could not fall under their discharge, which comprehended only provisions actually due to them; they therefore repelled the claim of the youngest child.
