Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Susanna Marshal, only child of the deceased George Marshal, Merchant in Edinburgh, his second marriage,
v.
George and Helen Marshals, children of the first marriage, and Mr Alexander Farquharson, Writer to the Signet, Helen's Husband, for his interest.

Date: 17 February 1710

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In a competition betwixt Susanna Marshal, who had adjudged for the provision in her mother's contract of marriage, dated January 3, 1690, and George and Helen Marshals; who had adjudged upon bonds of provision, granted to them in April, 1703, by their father, who made no contract of marriage with their mother: the children of the first marriage claimed to be preferred, at least to come in pari passu with Susanna Marshal: because they were creditors by the bond of provision; and her interest was but a naked destination, in her mother's contract; whereby she was heir of provision to the father, and liable to fulfil his deeds, and pay his debts subsidiarie, after discussing the heir of line. At least the children of the first marriage, were equally creditors by their bonds, as Susanna by the contract; both being granted in consequence of the natural tie upon parents to provide for their children.

Answered for Susanna Marshal,—The father could not evacuate the provision in her mother's contract of marriage, by granting ex post facto gratuitous bonds to the children of the first marriage; which he was under no civil obligation to grant, by contract with their mother; and the heir of a marriage may quarrel such gratuitous deeds, Stair, Instit. Lib. 3. Tit. 3. §. 19.

Replied for George and Helen Marshals,—Though a father cannot, in prejudice of a provision in his contract of marriage, do fraudulent or merely gratuitous deeds: he being fiar, is not tied up from rational deeds, for just and necessary causes; which is clear from the author of Les loix civiles, in the preface to that part of his treatise concerning succession, N. 10; the decision betwixt Anderson and Bruce, December 1, and 21, 1680; and seems to be also my Lord Stair's opinion, in the place cited. Now, a bond of provision, by a father to a child, cannot be considered as a fraudulent gratuitous deed; since the law of nature obligeth men to provide their children.

The Lords admitted the children of both marriages to come in pari passu pro rata, according to their respective provisions in the bonds and contract.

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