Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. VII.

Inhibition of Teinds, how past from. - Requisition or Premonition. - Decree Arbitral. - Recognition. - Legal Exception. - Provision of Conquest.

Mathew Cumming
v.
Janet Kennedy and Alexander Muir

Date: 7 December 1697
Case No. No 41.

A daughter, in her contract of marriage, accepted a clause, making her “a bairn in the house.” Found, that she thereby renounced the conquest provided to her in her father's contract of marriage.

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The Lords advised the action between John Kennedy and Helen Howat, and Mathew Cumming her husband. The question was, on a clause of conquest in the contract of marriage between Helen's father and mother, providing the conquest to the bairns of the marriage; and the said Helen being the only child of that marriage, she and Mathew Cumming her second husband raised a declarator, that the conquest belonged to her, and consequently to Mathew, her husband, jure mariti, the same being moveable; then she dies. Mathew, the husband, insists in the declarator, and Janet Kennedy, the said Helen Howat's daughter of the first marriage, compears, who alleged, That James Howat her grandfather's means can only be declared to pertain to her, in regard Helen, her mother, was neither confirmed executrix to her father, nor served heir of conquest to him; and so the dominion not being legally transmitted to Helen, the goods must necessarily fall to Janet Kennedy, her daughter.—Alleged, That the obligement providing the conquest to the bairns of the marriage needed no confirmation, being an illiquid subject, and of the nature of an universitas bonorum, but was transmissible ipso jure qua bairn, without any other cognition. And, 2do, She was served heir of line, which comprehended the subaltern branch of being heir of conquest and provision. 3tio, She had raised a declarator in her lifetime, which supplied the want and defect of a confirmation, and was equivalent thereto.—Answered, By the principles of our law, moveables require a legal title by confirmation to their conveyance, as well as heritage does a service, without which Drumelzier's title against the Earl of Tweeddale his brother, was refused as insufficient, 21st July 1676, voce Provision to Heirs and Children; and there is no transmission ipso jure amongst us, without service or confirmation, except only in the case of legitim and nearest of kin. See the famous case of Peter Bell's Children, 12th Feb. 1662, voce Nearest of Kin. And for her being served heir of line, she, thereby representing as heir general and universal, can never recur again to be a qualified heir as to a part of the succession only; and the declarator taking no effect in her lifetime, signifies nothing, even as the serving an edict or brief would evanish as an imperfect inchoate title, if the party died before the service or confirmation were expede.—Replied, The legitim is not the only case of transmitting ipso jure by our law; for a bond taken to a father, and failing him by decease, to a child substituted nominatim, the fee and property transmit there ipso jure to the substitute, without a service or confirmation. And, in the case of Shorts against Saline, 19th February 1695, voce Provison to Heirs and Children, the being heir designative was found sufficient; and in Drumelzier's case, a service was required, because it was heritage; but moveables are much more easily transmitted; so that the bare existence of a child is enough to carry the clause of conquest, being a moveable subject.——The Lords, on this debate, found of before, and this day, upon bills and answers adhered thereto, that Helen Howat had right to the clause and obligement of conquest contained in her father's contract of marriage, as a bairn of that marriage, and that ipso jure, and on her declarator, notwithstanding she was not confirmed nor served heir of conquest in special, but had served heir of line, and consequently that Cumming, her husband, had right jure mariti to what was simply moveable of that conquest; which was a nice point, and makes confirmations less necessary in such cases.

1698. July 7.—The Lords advised the rest of the points debated in the declarator, mentioned 7th December 1697, pursued by Mathew Cumming, merchant in Glasgow, against Jannet Kennedy and Alexander Muir, her husband. James Howat, in his contract of marriage, had provided the conquest to the bairns of the marriage. Helen Howat being the only daughter of that bed, and being first married to Thomas Kennedy, by whom she had the said Janet, and then married to Mathew Cumming; and James Howat in his testament having named Janet Kennedy, his grandchild, executrix and universal legatrix, Helen Howat and Mathew Cumming, the second husband, raise a declarator that James's whole means ought to belong to her, by virtue of the clause of conquest contained in her mother's contract of marriage, and that he could do no deed prejudicial thereto, and consequently, that the universal legacy left by him to Janet Kennedy ought to be declared void and null, the clause of conquest constituting her creditor; and though a father is not, by a destination of conquest, so bound up from disponing his goods in a rational way, providing it be done in liege poustie, et inter vivos, yet he can never by a gratuitous deed evacuate that obligement, nor dispose of his goods either by a testamentary conveyance or on death-bed.—Answered for Jannet Kennedy, That the clause of conquest is in favour of the bairns of the marriage; but ita est the word children, by the construction of law, includes not only those of the first and nearest degree, but all the subsequent and remoter brances, liberorum nomine non solum filii sed et nepotes neptesque comprehenduntur, l. 220. D. De. verb. sign.; et sermonis proprietati standum est ubi salva verborum sententia id fieri potest; so the clause of conquest is abundantly fulfilled by her grandfather's universal legacy to her, she being a bairn quoad him as well as her mother; and the design of these clauses is to tie up the parents from giving away that conquest to children of another marriage, but never as to those who are ex eadem stirpe, though in ulteriori gradu.—Replied, Grandchildren are comprehended under the name of liberi, in opposition to uncles or aunts, or other collaterals, but not where it comes to be in competition with a nearer degree, where nepotes are not reputed bairns; as to which the decisions ought to be considered, 9th Feb. 1669, Cowan contra Young, voce Provision to Heirs and Children; 3d Jan. 1679, Gibson contra Thomson, Ibidem; 19th June 1677, Murrays contra Murray, Ibidem; and lately, in 1692, the Children of Bailie Thomas Wyllie against him *; where the Lords found he might distribute his estate in what proportions he pleased among his bairns, notwithing

* Examine General List of Names.

of a clause of conquest.——The Lords sustained the universal legacy, and found the clause of conquest did not restrain him but he might even by testament legate his goods to his grandchild, and that the deed was not wholly gratuitous but rational. They likewise found, that Helen Howat, in her second contract with Mathew Cumming, having accepted of a clause making her a bairn of the house, was a renouncing of the clause of conquest, seeing the legitim and it were inconsistent, and that she could not repudiate the said provision now.

Fol. Dic. v. 1. p. 434. Fountainhall, v. 1. p. 800. & v. 2. p. 9. *** Dalrymple reports the same case:

1699. January 20.—By contract of marriage betwixt James Howat and Janet Cunningham, the conquest during the marriage is provided to the longest liver in liferent and conjunct-fee, and, after their decease, to the heirs or bairns of the marriage.

Helen Howat, the only daughter of the marriage, having married Thomas Kennedy, she got a portion of 6000 merks, and an obligement to be a bairn of the house by her contract, and Janet Kennedy is the only daughter of that marriage.

The said Helen Howat did afterwards marry Mathew Cumming, with whom James Howat did contract 10,000 merks, and again obliged himself that she should be a bairn of the house.

Thereafter the said James Howat made his testament, wherein he did nominate Janet Cunningham his relict, his executrix, and Janet Kennedy, his grandchild by his daughter's first marriage, universal legatrix.

Janet Cunningham having survived, she did also nominate Janet Kennedy her grandchild, her executrix and universal legatrix; and she left bonds to the value of 12 or 13,000 merks.

Mathew Cumming, the son-in-law, having confirmed himself executor-dative to Janet Cunningham, and intromitted with the bonds, Janet Kennedy, the executrix and universal legatrix to her grandmother, pursues Mathew Cumming for declaring her right to her grandmother's executry.

It was alleged for Mathew Cumming; That the executry of Janet Cunningham was nothing else but the result of the means of James Howat, her husband, to which the defender had right from Helen Howat, James Howat's only child, who, by his contract of marriage, was provided to the whole conquest; and his whole estate being conquest, it did belong to the defender's wife by the clause of conquest.

It was answered; That parents are fiars of their own estate, notwithstanding of clauses of conquest, or destinations in favour of heirs or bairns of a marriage, which doth not hinder the father to dispose of his estate or conquest, by any rational deed without fraud. And in this case, the universal legacy to Janet Kennedy was a most rational deed, because he had already provided the daughter of the marriage to two portions in her first and second contracts; and therefore might reasonably and freely dispose of the superplus by an universal legacy. 2do, Obligements in contracts are not designed to restrain the father's free disposal to the issue of the marriage in whatever degree. 3tio, et separatim, The daughter did, both in the first and second contracts, accept of an obligement to be a bairn of the house, which doth import a passing from the claim of succeeding in the whole by the clause of conquest; for the bairn's part being contradistinct to the dead's part, it doth imply that the father should have the free disposal of his own dead's part.

It was replied, 1mo, It is true, parents may dispose of their means by rational deeds, but then the father's disposal must be by deeds inter vivos, and not by an universal legacy; because heirs of provision are creditors, and all creditors are preferable to legatars; and consequently there is no place for any legacy, the whole being exhausted by the clause of conquest. 2do, Though grandchildren may be comprehended under the name of bairns, yet an obligement in favour of bairns, doth only belong to descendants in the first degree, if any be extant; and a father might as well legate to a stanger, as to a grandchild, in prejudice of a daughter.

3tio, The accepting of a legitim, was a clause in favour of the daughter, which she might repudiate, as her husband now doth.

It was duplied; That the defender doth acknowledge, that a father may do any rational deed, notwithstanding of a clause of conquest; and it cannot be denied, that the universal legacy was most rational; and the law hath left parents, and all fiars, in as full and free disposal of the moveables by testament, as of heritage by deeds inter vivos; and therefore the moveables might freely be disponed by the universal legacy, the daughter of the marriage being already sufficiently provided. 2do, It is acknowledged, that a provision to bairns does naturally fall to bairns in the first degree; but the design of contracts being only to exclude the father's arbitrary and fraudulent disposal of his means, either to children of another marriage, or to strangers, he may provide any descending of the marriage at his pleasure; and there is nothing more ordinary, than to provide younger children by testaments, though the clause of conquest be in favour of the heir, in which the children have no interest; and for the same reason a grandchild may be also provided.

3tio, The taking an obligement for a legitim, was not simply in favour of the daughter, but also in favour of her father; because that obligement relaxes the clause of conquest, as to the overplus; neither is it lawful to renounce that clause of the contract, unless the tocher thereby contracted were also renounced, and restored.

‘The Lords found the universal legacy could not be quarrelled upon the clause of conquest, the daughter being competently provided; and likewise found, That the accepting of an obligement to be a bairn of the house, did leave the father at his freedom to dispose upon the superplus at his pleasure.’ See Provision to Heirs and Children.

Dalrymple, No 10. p. 13.