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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Jean Craik and John Stewart her husband v. Grizel Craik, only surviving daughter of Adam Craik [1757] UKHL 1_Paton_643 (25 March 1757) URL: http://www.bailii.org/uk/cases/UKHL/1757/1_Paton_643.html Cite as: [1757] UKHL 1_Paton_643 |
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Page: 643↓
(1757) 1 Paton 643
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
House of Lords
No. 119.
Subject_Entail — Provision — Equity. —
An entail empowered the next heir to grant provisions to his younger children; but he conceiving that the entail so executed was in fraud of his father's marriage-contract, which provided the fee of the estate to the heir of the marriage, disponed the estate in fee to his own daughter, and did not exercise the powers conferred of granting provisions. Held, on reduction of the son's settlement, as in fraud of the entail, that when she was deprived of the benefit of her father's settlement, equity will support that deed to the extent of a reasonable provision, although the powers of the entail in this respect had not been exercised.
For the circumstances of this case see p. 542.
The House of Lords, in affirming the judgment of the Court of Session, specially reserved power to the respondent to claim a provision out of the estate, her father having, by the entail of 1723, a power to provide such provisions to younger children; and in the present action she now contended that the settlement of the estate on her by her father, although adjudged to have been ultra vires of the father, yet
Page: 644↓
Nov. 19, 1755.
Feb. 25, 1756.
The Court, by a majority, found that the pursuer was entitled to the sum of L.1500 sterling, as a provision out of the estate of Duchrae.
Against these interlocutors the present appeal was brought by the appellant, and a cross appeal by the respondent, complaining of the interlocutors in so far as they only allowed her a provision of L.1500 out of the estate.
Pleaded for the Appellants:—That in law the respondent had no title to a provision out of the estate, as none such had been granted her. And it does not follow that, because her father, Adam Craik, had a power to grant such provisions—a power which he never exercised, that therefore his daughter has a claim for such provision. On the contrary, such power never having been exercised, any provision to the respondent can only be conferred by the appellant's consent; and the appellant, moved by equitable considerations, having consented that a reasonable provision be awarded to her, ought not to have been burdened with a provision so great as the Court has allowed, which is exorbitant, and far exceeds what this small estate can bear. The sum of L.1500 is near thirteen years purchase of the estate.
Pleaded for the Respondent:—The estate of Duchrae originally stood vested in her father in fee, under his marriage-contract. Thereafter the entail was executed by his father, under which the appellant was favoured; while the deed of her own father,
Page: 645↓
After hearing counsel, it was
Ordered and adjudged, that the appeals be dismissed, and that the last mentioned interlocutor of 25th February 1756, and also so much of the said first mentioned interlocutor of the 19th November 1755 as is not thereby varied, be affirmed.
Counsel: For Appellants,
C. Yorke,
Walter Stewart.
For Respondent,
Robert Dundas,
Al. Forrester.
Note.—Unreported in the Court of Session.