Scottish Court of Session Decisions

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

Obligation by one in his contract of marriage, to provide certain sums or subjects to the issue of the marriage, how far effectual in competition with creditors?

Competition betwixt the Creditors of James Lockhart and Anna Lockhart

Date: 31 July 1741
Case No. No 62.

Clause in a contract of marriage, Whether importing that the children are creditors, or only heirs of provision?

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James Lockhart tenant in Brunston, in his contract of marriage with Margaret Montgomery his second spouse, provided 2000 merks to the children of that marriage, in the following terms, scil. “He contracts and provides to himself, and said spouse, or longest liver, during their lifetime, the yearly annualrent of the sum of 2000 merks, and the fee thereof to the bairns of the marriage which shall happen to be procreated betwixt them.”

Upon James's decease, Anna Lockhart, the only child of that marriage, confirmed herself executor-creditor to her father, for payment of the said 2000 merks; whereupon a competition ensued betwixt her and her father's Creditors.

For the Creditors it was urged, That, by the conception of the clause, Anna Lockhart could only be considered as an heir of provision, seeing her father does not become bound to pay to the children of the marriage 2000 merks, but only to provide and secure the fee of the said sum to the children of the marriage; so it must be deemed the same as if he had taken a bond to himself in liferent, and the children nascituri in fee; in which case, the children that after existed could only take the fee as heirs of provision to the father, in whose person the fee, of necessity, behoved to be lodged, though it is termed only a liferent; which, as the lawyers speak, behoved to be understood, ususfructus casualis, in reality a fee, though nominally termed a liferent. 2do, This provision was not exigible in the father's lifetime, or whereof the term of payment could exist in his life; in which case alone provisions to children nascituri are regarded in law to create the children that supervene proper creditors, so as to compete with other onerous creditors upon their diligence. See the case of the Creditors of Easter Ogle, 24th January 1724, No 59. p. 12909.

For Anna Lockhart it was urged, That, by the words of the provision, she could not be considered as an heir of provision, seeing her father does, per verba de præsenti, provide the fee of the said sum to the bairns of the marriage; plainly avoiding the words commonly used, heirs of the marriage; That the terms of every contract must be considered upon its own footing; and here the provision is not in the common stile, to the father in liferent, and the children nascituri in fee; but it is anxiously provided, That the fee should be directly in the children, and nothing but the bare annualrent of the sum in the parents during their life, which, as he could, so he has done in this case; whereby, on Anna Lockhart's existence, she became a proper onerous creditor in the fee of that sum. See 4th February 1681, Thomson, No 51. p. 4258. Sir James Stewart's Answers, p. 117.

The Lords found, That Anna Lockhart could not compete with the other creditors upon the provision of 2000 merks.

Fol. Dic. v. 4. p. 186. C. Home, No 178. p. 296.