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?

Fraser
v.
Fraser

Date: 6 December 1687
Case No. No 50.

A father had not expressly burdened the conquest with provisions to the children of his first marriage. was found, that, before the extent of the conquest provided to the children of a second marriage came to be calculated, the provisions to the first ought to be deducted.

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A Husband, in his contract of second marriage, having provided his wife to a liferent of the annualrent of 3400 merks, and of the half of the conquest; and it being expressly declared, that he had then lands and wadsets, extending to L. 11,000 Scots, which should not be reckoned conquest; the wadsets were redeemed, and lands sold, and the money employed upon personal security, bearing date after the marriage, and mentioning, that it was the product of the redemption or sale. After the husband's death, the wife claimed a liferent of all the sums in the securities bearing date after the marriage.

Alleged for the defender; The L. 11,000, and all debts due at the husband's death, whether contracted in the first or second marriage, must be first deducted; seeing conquest is only considered debitis deductis.

Answered; Although it be declared, that the wadsets, and others condescended on, extending to L. 11,000, were the husband's estate at the time, yet he might have spent that money; and the defender ought to prove, that the bonds in question were the product of the estate; 2do, It is just that the debt contracted during the first marriage should affect the L. 11,000; 3tio, The provision of 4000 merks to a daughter of the first marriage, paid after the second marriage, ought to be allowed in part of the L. 11,000, which probably was reserved for the children of the first marriage.

The Lords repelled the three answers; and found, that all debts resting at the husband's death ought to be paid before conquest can be considered; and that he might portion the daughter of the first marriage, which portion ought to be deducted, without diminishing the L. 11,000, before the extent of the conquest can be considered, although the father did not expressly burden the conquest with the provision, but indefinitely paid it. Here there was no obligement upon him to take the securities of what he should conquest to his wife in liferent; but the clause is, that she accepts of the jointure of the annualrent of 3400 merks, in full satisfaction of all, &c. excepting the liferent of the half of the conquest, which is provided to her.

Harcarse, (Contracts of Marriage.) No 391. p. 102. *** Sir P. Home reports this case:

1687. November 30.—By contract of marriage betwixt Alexander Fraser and Christian Fraser, his second wife, the said Alexander is obliged to provide his wife to an yearly annuity in liferent, in full of what she could claim by her husband's decease, except the half of the conquest; but it is declared, that what arable field, land, tenements in burgh, and sums of money, the husband had then belonging to him, that these should noways be reputed any part of the conquest, by which the wife by the foresaid provision was to claim right; as also, a sum due by wadset, and another by an apprising, extending to L. 11,000; which two rights, with what other estate the husband had then, are reserved out of the provision of conquest in the contract of marriage. And Christian Fraser being married to a second husband, and having pursued her first husband's heir for the half of the sums of money, conquest during her first marriage; alleged for the defender, That the reserved estate being first deducted, and then the debts due by the defunct, the superplus can only be understood to be conquest. Answered, That no debts can be deducted to exhaust the conquest, but only such debts contracted during the marriage, and not anterior debts. The Lords having considered the contract of marriage, and the condescendence of the husband's estate, therein contained, extending to L. 11,000, they found, that the import of the clause of the contract is, that, in the first place, there ought to be deducted out of the husband's estate, extant the time of his decease, the debts then due by him, and that the L. 11,000 is to be deducted, and what remains is only to be reputed conquest.

Sir P. Home, MS. v. 3.