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Old doctrine that children

creditors for

provisions.

creditors. Thus, a husband bound himself by ante-nuptial contract to pay to trustees £1,200, to be held for behoof of the spouses in such manner as they should instruct, and directed that, in the event of the wife predeceasing, any part of the sum that remained should be at the absolute disposal of the husband. In the event of his predecease, any part so remaining was to form part of his estate; and the deed next conveyed the whole estate of the husband to the wife in liferent and to the children in fee. The husband became bankrupt, and the Court held that the wife took only as disponee and executrix of her husband; as a successor, not as a creditor. The whole estate was vested in him absolutely until his death, and therefore passed to his creditors upon his sequestration. On the other hand, where a husband by marriage contract provided a certain sum to himself, his wife, and the survivor in liferent, and to the children of the marriage in fee, and settled the conquest in fee to the children and one half of it in liferent to the wife; and in case of no children surviving the husband, or in case of their dying before majority or marriage, the fee of one half both of the provision and of the conquest was to fall to the wife, it was held that she had a proper jus crediti and was not a mere heir substitute to her children.2

§ 203. 2. As regards Children.—At one time it was held could not be that children who took a provision, by virtue of an obligation liberis nascituris, necessarily took as heirs of the marriage or as heirs of provision, no matter what were the terms in which the obligation was conceived; and by a train of

1 Grant v. Robertson, 15 June, 1872, 10 M. 804. See also Honeyman and Wilson v. Robertson, 7 Dec. 1886, 14 R. 163; Darling v. Mein, 20 Dec. 1851, 1 Stuart 233.

2 Burden v. Smith, 1738, Elchies v. Mutual Settlement No. 7 ; Cr. and St. 215.

reasoning similar to that which established that the jus mariti must forever flow back to the husband who renounced it, it was determined that, as such heirs, they were liable to their father's creditors to the extent of the sum which they received.1 This view of the law was gradually abandoned, and it was ultimately settled that there was nothing to pre- Now decided vent children from being creditors of their father, or him from be so. contracting a debt in their favour. It therefore came to be

a point of construction, the question being, Has such an obligation been contracted? If so, then the children are in

the language of the old lawyers "creditors with creditors," or as we now say, they have a jus crediti. If they have nothing more than a right of succession, they are "heirs amongst creditors and creditors amongst heirs"; in other words they have only a spes successionis. It is also settled that such an obligation can be undertaken not only to children nati, but to children nascituri.

There was often a difficulty in protecting the rights of children when investments, other than those in or upon land, were practically unknown, especially where, as was often the case, it was necessary to leave the administration of the husband's estate in his own hands. Hence the early decisions are largely mixed up with technical rules of feudal law.2

that they can

provisions

§ 204. Nowadays provisions to children are generally in Nature of money, and if they are secured at all upon land it is by means now made

1 Grahame v. Rome, 1677, M. 12887; Marjoribanks v. Marjoribanks, 1682, M. 12891.

2 Per Lord Cringletie in Brown v. Govan, 1 Feb. 1820, F.C. The old practice of providing for younger children is explained by Lord Murray in Kippen's Trustees v. Kippen, 3 July, 1856, 18 D. at p. 1164, and see per Lord Deas at p. 1185. See also Browning v. Hamilton, 25 May, 1837, 15 S. 999; Herries, Farquhar & Co. v. Brown, 9 March, 1838, 16 S. at p. 965.

to children.

Rules for determining whether a jus crediti has been conferred.

of an express trust. The obligation undertaken by the parent is to pay a certain sum of money. It may be at a definite time during the lifetime of the father, assuming him to be the grantor of the obligation,—or after his death, or it may be at an indefinite date it may be secured, or it may be unsecured; interest may be payable from a day certain, although payment of the principal is deferred, or the payment both of principal and interest may be deferred. The point is, Are the children constituted creditors of the father in any shape during his life, or is their claim only upon his estate at his death? Have they a jus crediti, or a spes successionis? "Every question in a marriage contract," says Lord Eskgrove, "in which children are concerned, is to be interpreted favourably for the children, for marriage contracts, so far as children are concerned, are onerous, and entitled to a liberal construction in favours of the children. If clauses appear which can receive no other interpretation than a jus successionis, there is no help for it: But when a provision is given in terms that bestow a jus crediti, and give a ground of action to the children against the father, they are as truly onerous as any debt which the father can be owing."1

§ 205. In determining whether a jus crediti has been conferred the following rules have been established:

(a) An unqualified obligation by a father to pay a sum of money to his children, or to settle a portion of his property for their behoof, constitutes them his creditors; 2 but if the term of payment is postponed until after his death,

1 In Mackenzie's Creditors v. Mackenzie (Redcastle Case) Bell's 8vo Cases at p. 419. To the same effect see per Lord Deas in Forrest v. Robertson's Trustees, 27 Oct. 1876, 4 R. 22. The presumption was formerly the other way, Gordon v. Sutherland, 1748, M. 12915, 4398, H. of L., Cr. and St. 493.

See Adv. General v. Trotter, 12 Nov. 1847, 10 D. 56; S.C. Reports of Exchequer Cases in Scotland, No. 4.

solutio bars

children in a

question with

onerous creditors.

with or without the payment of interest after that term, they are held to have merely a spes successionis: they are, to (a) Morata use the quaint but apt phrase of the old writers, heirs claim of among creditors and creditors among heirs; their claim is against heirs or lucrative successors, not against onerous creditors; or, as otherwise stated, they are only quodammodo creditors.2 As expressed in recent cases, they have a protected succession. They have a jus crediti against the succession, not against onerous creditors. It does not make them creditors of the father during his lifetime, or creditors at any time, in competition with his creditors in onerous debts and obligations; but makes them creditors; against the estate of their father after his decease for performance of the obligations contained in the marriage contract.3

the provisions

tory.

§ 206. If the provisions in favour of children are founded otherwise if upon transactions with them, or with some one on their are remunerabehalf, e.g., if a right or privilege has been given up by them, or an obligation has been undertaken in the contract by a third person as consideration for the provisions, they cease to be gratuitous, and stand upon the same footing as other onerous obligations, although the date of payment is postponed until after the father's death."

1 Herries, Farquhar & Co. v. Brown (the Clanranald Case) 9 March, 1838, 16 S. 948. As to this case see Hope, L.J.C., in Wilson's Trustees v. Pagan, 2 July, 1856, 18 D. at p. 1103; and per Lord Deas in Forrest v. Robertson's Trustees, 27 Oct. 1876, 4 R. at p. 42. Goddard v. Stewart's Children, 9 March, 1844, 6 D. 1018; Harvie v. Wink, 3 July, 1847, 9 D. 1420; Wilson's Trustees v. Pagan, 2 July, 1856, 18 D. 1096; Dundas v. Dundas, 16 May, 1839, 1 D. 731.

2 I.e., limited creditors, creditors to the extent of setting aside gratuitous deeds. So it is said of a husband that he is quodammodo a creditor in respect of his courtesy, 3 Br. Supp. 146.

3 Arthur and Seymour v. Lamb, 30 June, 1870, 8 M. 928; Gillon's Trustees v. Gillon, 8 Feb. 1890, 17 R. 435.

4 Gordon v. Murray, 9 Feb. 1833, 11 S. 368; Gourlay v. Thomson, 15

(b) Children have jus crediti

§ 207. (b) If, on the other hand, although the provision is entitled to ab- payable after the death of the father, the children or some one

if they are

ridge father's

power of administration during his life.

on their behalf have the power of suing him to compel him to

do something in their favour abridging his power of administration of his estate, they have a jus crediti.1 Thus if the father obliges himself to secure the provisions in his lifetime-e.g., by an infeftment in favour of the children, or in the persons of trustees for their behoof, or by investment in some form, either directly or through trustees, this is an obligation of debt, and a jus crediti which can compete with onerous creditors is conferred upon the children.2 Multo magis if the security has been constituted by infeftment in the person of the children, or in the persons of trustees for their behoof.

This, it has been held, shows that the intention was that in any case the money was to be forthcoming. The property is not left in the administration of the parent, but a real and effectual right in it is transferred to the children or the trustees, which will give

Dec. 1820, affd. 11 May, 1824, 2 Sh. App. Ca. 183. In this case there was a surrender of a lease, which was held to be valuable consideration for the provisions made. Blackburn v. Oliver, 29 May, 1816, F.C.; Garden v. Stirling, 26 Nov. 1822, F.C. S.C. 2 S. 39. These cases had reference to obligations undertaken by fathers in their daughters' contracts of marriage. Montgomery v. Hart, 17 July, 1845, 7 D. 1081. Here the husband sold his wife's paraphernalia and gave her an under taking that she should be entitled to the amount at his death.

1 See per Lord Benholme in Wilson's Trustees v. Pagan, 2 July 1856, 18 D. 1096.

2 Douglas v. Douglas and Drummond, 1724, M. 12910; Nasmyth v. Brands, 1731, M. 12914; Anonymous Case quoted in Gordon v. Sutherland, 1748, M. 12915; but see the explanation of this case given by Lord Benholme and other judges in Wilson's Trustees v. Pagan, supra. There was a different decision in Brown v. Govan, 1 Feb. 1820, F.C.; but the law was fixed in Herries, Farquhar & Co. v. Brown, 9 March, 1838, 16 S. 948.

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