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Mr William Ayton of that ilk v The Lady Ayton and her Children. [1707] 4 Brn 670 (00 January 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Brn040670-0166.html Cite as:
[1707] 4 Brn 670
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Mr William Ayton of that ilk v. The Lady Ayton and her Children
1706 and
1707.
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1706. February 23.—Mr William Ayton of that ilk against the Lady, his mother-in-law, and her Children. He, as heir served to Sir J. Ayton, his father, cum benefitio inventarii, pursues reduction of the provisions made by his father to my Lord Colvil's sister in his second contract of marriage, giving her twenty-two chalders of victual, and 40,000 merks to the bairns, besides &16,000 Scots he gave them since; which being exorbitant, and procured delinimentis novercatibus, and far beyond what the estate could bear, and contrary to the provisions made to him in his mother's contract, he craved to be reduced, as contra fidem tabularum nuptialium, the obligements of the first contract being onerous and prior, and so ought to be first performed.
Alleged,—The pursuer having served himself heir simply, and not as heir of provision and of the first marriage, he can never quarrel his father's deed, but is liable to fulfil all his obligements, and becomes both debtor and creditor; aditio hareditatis being actus legitimus qui nec diem recipit nee conditionem.
Answered,—Though his retour does not expressly bear ratione provisionis in contractu matrimoniali, yet materially it imports it; seeing it mentions that lator praisentium is the son of the first marriage. Likeas, he is served on the Act 1695, cum beneficio inventarii; and having both the characters and capacities, as heir of line and heir of the first marriage in his person, he may make use of any of them that he pleases: as was found in Livingston of Saltcoats' case against Mrs Margaret Menzies; and between Janet Kennedy and Mat then-Cuming.
Vol. II. Page 331.
1707. July 18.—The case mentioned 23d February 1706, betwixt Lord Ran-keillor and Lady Ayton, and now, on my Lord's death, transferred in his lady's person, was reported. And the competition falling betwixt Sir John Ayton's children of the second marriage, as assignees, and the executors-creditors of Sir John; it occurred to some of the Lords, whether the assignations were granted for implement of the provisions matrimonial, which relation to their mother's contract would make them more onerous. But, after inspection, it was found that they proceeded on the narrative of love and favour. And though the children declared, that they would make no other use of them than to fortify their provisions, yet it was urged, that this was contrary to the express will and narrative inserted by the father, in his assignations to them. The children further alleged,—That, in the case of the bairns of Douglas of Monswal, the Lords sustained provisions to bairns as preferable, in respect he had a sufficient visible estate at the time, able to pay both his debts and his bairns' provisions. But this interlocutor was altered after the Revolution.
The Lords preferred the executors-creditors to the children's intimated assignations; but ordained them to assign after their own payment, with this express quality, That the same should not compete with the other extraneous onerous creditors. Which brings in the children in the last place, after all the creditors, if the estate be sufficiently able to satisfy them all; and no otherways.
