Scottish Court of Session Decisions

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.

Jane Dollar and her Husband
v.
John Dollar

Date: 4 December 1792
Case No. No 131.

A destination of lands in a marriage-contract, “to heirs or children, one or more,” how to be interpreted?

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The father of John Dollar, in his son's contract of marriage, disponed certain lands “to him and his wife in liferent, and to the heirs or children, one or more, lawfully to be procreated of the marriage, in fee, (as shall be disposed of by the father to them.”) The procuratory of resignation was simply in in favour of the “heirs” of the marriage; and the conquest was by another clause given to the child or children.” The lands disponed were held burgage of the burgh of barony of Kirkintilloch, and consisted of about 60 acres. The parties differed about their value, but they appear to have been worth from L. 70 to L. 100 Sterling yearly. They had been in the same family for above 200 years, and the privilege of being a burgess of Kirkintilloch was annexed to them.

Of this marriage there were seven children; John Dollar junior, Jane, and five other daughters.

In 1776, John Dollar, their father, executed a disposition of the whole subjects contained in the contract in favour of his son, and in 1787, he died, leaving personal debts nearly equal to his moveable property.

After the father's death, Jane and her husband brought the present action against her brother, concluding to have it declared, that in virtue of the destination to “heirs or children,” in her father's contract of marriage, she was entitled to an equal share, along with her brother and sisters, of the subjects thereby disponed; and

Pleaded; If it had been intended by the divise in the marriage-contract, that the heir at law should succeed, the addition of the words ‘or children’ was altogether superfluous. The natural meaning of the expression, and indeed the clear intention of the parties in using it, must have been, that the whole children might succeed as heirs of provision. The subsequent part of the clause giving the father a power of division, as it did not entitle him to exclude entirely any of his children, is also favourable to the pursuer's argument, by shewing that her grandfather had no predeliction for the eldest son, who might thereby have been cut off with a very small share.

From the nature of the property likewise, consisting of a number of detached pieces of ground, the representation of a family could not enter into the views of the contracting parties. Accordingly, in destinations similar to the present, where the subject was either money heritably secured, or land-property of a trifling value, the Court have been in use to decide in favour of the whole children, especially in cases where the lands held burgage. Indeed, in the late case of Fairservice against White, No 57. p. 2317, quoted by the other party, it was admitted by the heir at law, that subjects held by this tenure, when destined to heirs and bairns, would in every case go to the whole children equally; 13th June 1760, Creditors of Scott against Scotts, No 100. p. 985, 1st December 1769, Wilsons against Wilson*.

Answered; The subject contained in the contract, although holding of the burgh of Kirkintulloch, is a considerable property, both in point of extent and value. It has been handed down from father to son for many generations, and is in every respect different from common urban tenements, which are in general so small as to make it necessary for their proprietor to engage in some handicraft for his subsistence. Accordingly, in judging of the meaning of destinations like the present, where the subject in dispute fell to be considered as

* Not reported.

a proper landed estate, the Court proceeding on the authority of our law writers, the probable intention of parties, and the legal presumption in favour of primogeniture, have always preferred the eldest son; Dirleton and Stewart, voce Heirs of Provision; Bankton, b. 3. tit. 5. § 48.; 13th February 1768, Kempt against Russel*; 17th June 1789, Fairservice against White, No 57. p. 2317.

As to the subsequent words in the dispositive clause, ‘as shall be disposed of by the father to them,’ their sole purpose seems to have been to put it in the father's power to disappoint the succession of the heir at law, if he should be so inclined. It appears, however, that so far from wishing to exercise this power, he corroborated the destination laid down in the contract, by granting a disposition in favour of his eldest son.

The Lord Ordinary pronounced the following judgment:

‘Finds the destination in the contract in question calls all the children of the marriage ‘as heirs of provision,’ and that they were thereby entitled each to an equal share, if the father did not make a division; finds, That the subsequent part of the ‘clause, as shall be disposed of by the father to them,’ gave him no greater power than is implied in such cases; and that though both powers enabled him to make an unequal division, yet neither enabled him to give the whole to one, or totally to exclude any of the children.’

On advising a reclaiming petition, with answers, the Court (27th June 1792) altered this interlocutor, and ‘sustained the defence with regard to the lands contained in the contract of marriage libelled on, and assoilzied the defender.’

The pursuers reclaimed; but on advising the petition, with answers, the Lords adhered to their former judgment.

Lord Ordinary, Dreghorn. Act. Fletcher. Alt. Dean of Faculty, Wight. Clerk, Menzies. Fol. Dic. v. 4. p. 184. Fac. Col. No 7. p. 16

* Not reported.