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?

Ronald Grahame
v.
Sarah Rome

Date: 24 January 1677
Case No. No 42.

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John Rome being obliged by his contract of marriage with his second wife to provide 10,000 merks in favours of himself, and his spouse in conjunct-fee, and the heirs of the marriage; whom failing, to his own heirs and assignees; and to provide also 5000 merks in favours of the remanent bairns of the said marriage;

The Lords found, That the father was fiar of the said sums, and that the heir of the marriage and remanent bairns had an interest only to succeed to him as heirs of provision in the same; and that the creditors might affect the said sums, and would be preferable to the bairns, notwithstanding their debts were contracted after the said contract of marriage, and inhibition thereupon, seeing the inhibition could not take away his fee: And the import and effect both of the said obligements and inhibition, is only that the father should do no fraudulent deed, without an onerous cause, in prejudice of the same.

Reporter, Gosford. Fol. Dic. v. 2. p. 280. Dirleton, No 437. p. 214. *** Stair reports this case:

John Rome, by his contract of marriage with his second wife, is obliged to provide himself and his wife by security in 10,000 merks, and to the eldest son of the marriage, and 5000 merks to the remanent bairns. Upon which contract inhibition was used against the father by the wife's brother. Thereafter he borrows a sum of money from Ronald Grahame, and the bairns of this marriage, beside the heir, obtained decreet against the heir of line, and thereupon apprize. Ronald Grahame doth also apprize; and both are within year and day, and are now competing for mails and duties. It was alleged for Ronald Grahame, That he ought to be preferred, because Sarah Rome's apprissing, proceeding upon a provision in a contract of marriage, in favours of the bairns of the marriage, which if it had taken effect conform to the contract, it would have been by a bond or infeftment to the man and wife, the longest liver of them two in conjunct-fee, and to the bairns of the marriage beside the heir; who therefore are heirs of provision, and can exclude no creditors, though contracting after; who, after the other heirs were discussed, would have action against the bairns, as heirs of provision, or as heirs substitute to their father, in so far at least as might be extended to the provision. It was answered, That bonds of provision granted to bairns, if delivered, are valid rights, if the granter had an estate sufficient for his debts and these provisions, and will be preferable to posterior creditors, though the bonds of provision be merely voluntary; much more ought provisions in contracts of marriages, which cannot be quarrelled as clandestine or latent, because there was inhibition published, and registrate thereupon, which would reduce Ronald Grahame's bond as posterior.

The Lords found the creditor, though posterior, preferable, seeing there were no bonds granted to the children nominatim, but a general provision ere they were born; and found that not only the eldest son, but all the bairns of the marriage were heirs of provision to their father, and that they could not come in pari passu with the creditor, but only after him, and such provisions and inhibitions thereon could only hinder the father to do any voluntary or fraudulent deed, in prejudice thereof, without a cause onerous; but could not reduce his bonds granted after the inhibition, for sums truly received; yet, upon desire of the children, they allowed them to be further heard in præsentia.

Stair, v. 2. p. 497.