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them not only a jus crediti but a preference in a question with creditors.1

must be definite.

§ 208. But the obligation to secure the provision must itself Obligation be definite. It must be something that the children can enforce and not a mere general undertaking, such as is often found in loosely drawn deeds, to give security if and when the father can or chooses to do so.

merely

destination

cannot com

pete.

§ 209. So too, if the father only obliges himself to take a If security security to himself in fee, with a mere destination to the amounts to a children, they have nothing more than a spes successionis. 2 children A title made up in such terms would have the same result. The father would remain fiar. He could not gratuitously defeat the destination,3 and in a question inter heredes the children's claim would be specific instead of being general; but the children could not claim against his onerous creditors, who, on the contrary, could attach the fund for the father's debts. The character of the right, for the protection of which security is given, must regulate the operation of that security. To give the children a claim to compete with creditors the fee must be taken out of the father.

1 Herries, Farquhar & Co. v. Brown, supra; Bushby v. Renny, 23 June, 1825, 4 S. 110; Cruikshank's Trustees v. Cruikshank, 4 Nov. 1853, 16 D. 7.

2 Wilson's Trustees v. Pagan, 2 July, 1856, 18 D. 1096; Goddard v. Stewart's children, 9 March, 1844, 6 D. 1018. Here there was an actual conveyance. Wilson's Trustees v. Pagan, supra, 2nd branch, as to the policy of insurance. Wilson v. Wight, 18 June, 1816, Hume 537.

3 Home v. Home, 1708, M. 12900; affirmed H.L. Robertson's App. 47; Riddel v. Riddel, 1766, M. 13019.

4 M'Donald v. M'Lachlan, 14 Jan. 1831, 9 S. 269; Massey v. Scott's Trustees, 5 Dec. 1872, 11 M. at p. 176.

Undertaking by father to reinvest will not convert general obligation into a jus crediti.

Jus crediti conferred if provision

payable in lifetime of

§ 210. It was at one time held that if an undertaking, which leaves the father fiar, be followed by an obligation that as often as he should uplift the sum he should reinvest it in the same terms, this constituted a jus crediti in favour of the children.1 This was probably on the principle that such an obligation is equivalent to a prohibition to alienate, or a restraint upon the father in the interest of the children; in other words, that the destination was equivalent to a fiduciary fee in the father for the children.2 This doctrine has, however, been overruled, and it is now settled that an obligation in these terms does not create a jus crediti.3

§ 211. (c) If the provision is payable during the lifetime of

the father, or at a time that may give the children a claim on father or at a him during his life-e.g. if it is payable at the births of the

time that may

happen during children, on their attaining a certain age, on their marriage,

his life.

or at the dissolution of his own marriage,—which may happen in his own lifetime by the predecease of the wife,”—a jus crediti is conferred upon them, entitling them to rank as onerous creditors; or to a preference if they have obtained

6

1 Anonymous Case, quoted in Gordon v. Sutherland, 1748. M. 12915, 4398, in H. of L., Cr. and St. 493, and in the Clanranald case, supra, p. 153. Supra, § 141; infra, § 214.

2

The

3 Wilson's Trustees v. Pagan, 2 July, 1856, 18 D. 1096. minority opinion of Lord Curriehill primus in this case is interesting

and instructive.

'An obligation to transfer property, or to denude oneself of property, would be in the same position as an obligation to pay money.

5 Browning v. Hamilton, 25 May, 1837, 15 S. 999.

In Lyon v. the Creditors of Easter Ogle, 1724, M. 12909, a provision in favour of daughters payable at the marriage of each, if in her father's life, otherwise on her reaching the age of 18, was found effectual to make them creditors. In Ballingall v. Hendersons, 1759, M. 12919, a similar decision was given. See also Jolly v. Graham, 24 Feb. 1824, 2 S. 730. In Douglas v. Douglas and Drummond, 1724, M. 12910, the obligation, it was found, imported an obligation to infeft the heirs of the marriage as soon as they existed, and this was held to

1

security. But not so if the provision is payable after the father's death, although payable to children ascertained at a date in his own lifetime.2

Or interest is

to run from a date that is or

may be in

father's life

§ 212. (d) If, although the principal is not payable until after the father's death, it bears interest from the date of the deed or from any term which may be within the father's time. lifetime, a jus crediti is conferred both for principal and interest. This is not affected by the fact that a power of division is reserved to the father.3

payment immaterial when provision made by a

§ 213. (e) Where a provision in an ante-nuptial contract Time of for the children of the marriage is made by a third person -and in such cases every person, other than the spouses, e.g. third person. the father of one of them, is a third person-it is immaterial that it is not payable until after the husband's death.*

as a test

§ 214. It has been suggested that the test of the constitu- Jus exigendi tion of a jus crediti is whether a jus exigendi, a right jus crediti. of action has been conferred; 5 but this is merely restating the problem in a different form. The question then is what

confer a jus crediti. The leading case is that of Mackenzie's Creditors v. Mackenzie (the Redcastle case), 1792, M. 12924, and App. Prov. to Heirs, No. 3; S.C. Bell's 8vo Cases, p. 404. The last is the best report; affirmed by House of Lords, 3 Paton App. Ca. 409. Here the provision was not payable till after the death of the father, but it bore interest from the majority or marriage of the children, a term which might happen during the life of the father.

1 Cruikshank's Trustees v. Cruikshank, 4 Nov. 1853, 16 D. 7.

2 Goddard v. Stewart's Children, 9 March, 1844, 6 D. 1018.

3 Mackenzie's Creditors v. His Children, 1792 (Redcastle case), M. 12924, Bell's 8vo Cases, p. 404; affd. H. of L. 3 Paton App. Ca. 409. As to this case see Brodie's Stair, i. p. 9o, note; Clanranald case, supra, 16 S. at p. 967.

4 Gordon v. Murray, 9 Feb. 1833, 11 S. 368, supra, § 206, note 1. 5 Per Lord Eskgrove in the Redcastle case, supra, Bell's 8vo Cases at p. 419.

It is, indeed, just substituting one phrase for another. "A jus crediti may be defined to be a right which the holder of it cannot make

Jus exigendi

must be such

is the extent and nature of the jus exigendi, and it is amply illustrated in the old cases arising upon destinations.

A father may oblige himself to take the titles of property, either heritable or moveable, in favour of himself and his wife in liferent, and the children of the marriage nascituri in fee. This is an obligation which confers upon them a jus exigendi when they come into existence. They are entitled to compel him, by action, to have titles made. up in this form, but it does not give them a jus crediti to compete with onerous creditors. In such a case the father would remain fiar after the titles were made up in terms of his obligation. They are no better than children whose right stands merely upon destination. If, on the other hand, the obligation is to make up titles in such a form as will limit his powers or make the children the fiars-e.g., if the conveyance is to be to the father in liferent and the children in fee, or if the father is to be constituted fiduciary fiar for the children, the case is different the jus exigendi, if followed out, would confer upon them a jus crediti 3

§ 215. In short, the jus exigendi must be such as will, as will result during the father's lifetime, result in a right of action to

in curtailing

father's power

of administra- abridge his powers of administration or the beneficial enjoy

tion.

available, if it is resisted, without a suit to compel persons to do something else in order to make the right perfect." Per Lord Cranworth, L.C., in Edmond v. Gordon, 1858, 1 Paterson, App. Ca. at p. 727; S.C. 3 M'Q. at p. 122.

1 M'Donald v. M'Lachlan, 14 Jan. 1831, 9 S. 269; Kennedy v. Allan, 19 Feb. 1825, 3 S. 544; Dewar v. M'Kinnon, 1825, 1 W. and S. 161; Fulton v. King, 1811, Hume, 533.

2 See per Lord Corehouse in Brownings v. Hamilton, 15 S. 999.

3

Supra, § 207; Douglas v. Douglas and Drummond, 1724, M. 12910. M'Intosh v. M'Intosh, 28 Jan. 1812, F.C.; Newlands v. Newlands, 9 July, 1794, M. 4289; Falconer v. Wright, 22 Jan. 1824, 2 S. 633.

ment of his property. If the provisees have a jus exigendi of that character they have a jus crediti. They are creditors of their father, entitled to rank with his other onerous creditors, or to retain their security if their provisions have been secured by part of the father's estate. They have all the rights of ordinary creditors. They may inhibit and adjudge, either absolutely if their rights be purified, or in security if these be contingent and the father be vergens ad inopiam or about to flee the country.

§ 216. A disposition by the father to children having a proper jus crediti would not be reducible under the act 1621, as granted to a conjunct person without onerous cause.2

A conveyance

to children having a

urediti is

not challengeable under

Act 1621.

provisions

§ 217. Although provisions in favour of children may not Children's confer a jus crediti in competition with onerous creditors, binding on they will as a general rule bind the father and his representatives so that they cannot be defeated by gratuitous deeds.3 So, too, although wife or children may not be able to com pete with the creditors of their father, they may have a good claim against a cautioner who has obliged himself along with the grantor.*

over creditors

§ 218. Whether the provision is a spes successionis or con- Preference stitutes a proper jus crediti, if it imposes an obligation of heir. upon the father, the children are entitled to a preference

1 See, for instance, Cruikshank's Trustees v. Cruikshank, 4 Nov. 1853, 16 D. 7.

2 Ersk. 3. 8. 40; M'Kenzie v. M'Kenzie's Creditors, 1792, Bell's 8vo Cases, p. 404; Fraser, Husband and Wife, ii. p. 1382; per Lord Curriehill in Wilson's Trustees v. Pagan, 2 July, 1856, 18 D. at p. 1134.

3 Supra, §§ 203, 205; Bell, Pr. § 1987; Brodie's Stair, ii. p. 555; Adv. General v. Trotter, 12 Nov. 1847, 10 D. 56, S.C. Reports of Exchequer Cases in Scotland, No. 4.

4 Fotheringham v. Fotheringham, 1734, M. 12929, 12941; Wilson v. Wishart, 16 Nov. 1844, 7 D. 125; Ersk. 3. 8. 40.

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