Scottish Court of Session Decisions

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

What understood to be sufficient implement.

Ker
v.
Kers

Date: 23 January 1747
Case No. No 116.

Whether a person, bound by his contract of marriage to settle his estate upon the heir of the marriage, can lay him under prohibitory and irritant clauses?

Click here to view a pdf copy of this documet : PDF Copy

The question has often occurred, How far one having, in his contract of marriage, become bound to settle his estate upon the heir of the marriage, can implement that obligation, by a deed in form of a tailzie, containing prohibitory and irritant clauses? But the abstract question has never yet been determined; as in all the cases wherein that question has occurred, there have been irrational clauses in the deed, upon which the Lords have reduced, never chusing to determine general and abstract points without necessity; and if there be but one irrational clause in a tailzie, it is sufficient to void the whole, as non constat that the granter would have made the tailzie, if such clause had not been in it. Accordingly, in the case of the tailzie of Bachilton, the Lords, in respect of certain irrational clauses therein contained, reduced it, at the instance of the heir of the marriage.

The like was done in the present case, where Ker of Abbotrule, who had become bound in his contract of marriage to settle his estate, which was about 6000 merks a-year, upon the heir-male of the marriage, had executed a tailzie thereof in favour of William Ker, his eldest son and heir-male of the marriage; wherein, besides other unreasonable clauses, he laid him under a strict prohibition, under an irritancy, to grant a jointure to his wife, exceeding L. 20 yearly, or provisions to his children, exceeding two years rent; of which the said William Ker having pursued reduction against his own children, and other substitutes, the Lords “Found, that the tailzie contained clauses irrational, contrary to the marriage-contract; and reduced,” &c.

Fol. Dic. v. 4. p. 190. Kilkerran, (Provision to Heirs and Children.) No. 7. P. 459. *** D. Falconer reports this case:

Ker of Abbotrule, in his contract of marriage, became bound to settle his estate, said to be about 6000 merks Scots yearly, upon himself and the heirs-male of the marriage, and afterwards he executed a tailzie, in favour of William Ker, his eldest son, and his heirs-male, reserving his own liferent, and a power to sell, gift, and dispone, the estate, and to contract debts, providing that his son should be bound to pay all his debts, and provisions granted, or to be granted, to his younger children, particularly a bond of 60,000 merks Scots, granted to two daughters of his second marriage, and all provisions he should grant to his present, or any future wife, particularly an annuity of 1200 merks, and the liferent of the house, gardens, and inclosures, said to be worth 600 merks, prohibiting the heirs of tailzie to contract debt, or alienate, and laying him under the burden of redeeming adjudications led on the tailzier's debts and children's provisions, two years before expiration of the legal, prohibiting him to grant a jointure exceeding L. 20 Sterling to his present wife, nor provisions to his younger children, exceeding two years free rent of the estate, obliging him to possess the estate by that, and no other title; with power to sell as much as would answer the burdens laid thereon by the tailzier, at 20 years purchase.

William Ker raised a reduction of this tailzie, in which he was opposed by his own children, the heirs substitutes.

Decisions cited for the pursuer, 17th February 1727, Gentles against Mitchell, and two cases relating to the estates of Bachilton and Achlyne.—See Appendix.—See No 112. p. 12984.

The Lords found, that the tailzie under reduction did contain provisions and clauses irrational and inconsistent with, and contrary to the faith of the marriage-contract, and reduced the said tailzie.

Reporter, Arniston. Act. R. Craigie. Alt. J. Graham. Clerk, Forbes. D. Falconer, v. 1. No 159. p. 205.