PART II. F. C. MODE OF CON- CHILDREN A jus M. 12919. children were held not to be creditors. This principle results from CHAPTER VI. the common interest of the children in the family association, which, as it secures to them benefits, so it also imposes corresponding liabilities. They cannot, therefore, be reckoned creditors of a fund, which being a property in communion between them and their parents is in a sense their own. The nature and force of this principle is strikingly illustrated by the light in which the law regards illegitimate children. These have no right to legitim, no claim upon the dead's part, no interest in the family means, are in the eye of the law strangers, and, therefore, a provision to them gives them the position and right of creditors; Ballantyne v. Dunlop, 17th February 1814. Here a bond of provision to natural children, granted and delivered by the father while solvent, was held to confer a jus crediti, although not payable till his death. The children of the marriage, however, may have a jus crediti conferred upon them, and they will have that right, if their provision be made payable at a fixed date, or at a date which, though not precisely fixed, may arrive during the father's life; Ballingall v. Hendersons, 31st January 1759. Here the term of payment was the majority or marriage of each child, which was held to constitute them proper creditors. To the same effect are the cases of Jolly v. Graham, 24th February 1824, and Cruikshank's Trustees v. Cruikshank, 2d November 1853. The same result is produced, if the provision, although not payable till after the father's death, be made to bear interest from the majority or marriage of the children; Mackenzie's Creditors v. His Children, 2d February 1792. If the provision be payable at the dissolution of the marriage, that also will confer upon the children the character of creditors, because that event may happen during the father's life. The payment at a fixed term, or at a term which may arrive before the death of the father, must not be subject to any condition or contingency, otherwise there will be a mere spes successionis. Accordingly, in Brown v. Govan, 1st February 1820, although the amount was taken payable at the children's majority or marriage, it was stipulated by a subsequent part of the deed, that it should not be payable till after the father's death. The provision was, therefore, held not to import a jus crediti; and the same rule was applied in Mactavish's Children v. His Creditors, 15th November 1787, where, although marriage or majority was the stipulated term, the payment was dependent with regard to its amount upon whether this heir to a certain marriage should succeed to the father's estate. 2 S. 730. 16 D. 7. M. 12924. F. C. M. 12922. MODE OF MAK- The children can be made preferable to creditors only by taking the fee-that is, the right to the substance of the property or moneyout of the father, and vesting it in them or in trustees for their benefit. We have not space to enter at present into a full examination of the important and difficult subject of fee and liferent, and 66 CHAPTER VI. PARENT IN LIFE RENT, AND shall only explain some of the familiar instances of the use and effect PART II. of these terms. When the fee of a sum of money remains in the father, it is subject to the diligence of his creditors, and the question, PROVISIONS TO whether the children are creditors, will depend, as we have seen, upon the terms in which the provisions to them are conceived. It will not CHILDREN IN readily be presumed, that the father has been divested of the fee of FEE. his own money, unless terms be used which admit of no other construction. Although, therefore, a bond for money lent by the father be taken to the father and mother in liferent and to the children in fee, the children not being named, the fee still remains in the father, because it is said the law will not allow a fee to be in pendente. But, if the father's liferent be qualified by the word "allenarly" or only," that is held to be an absolute restriction, indicating that he is divested of the fee. A preference may, therefore, be conferred upon the children, by investing their provision upon a title exclusive of the father's right of fee, as, for instance, in favour of the wife in liferent, and the children in fee, excluding the jus mariti, or, in favour of the father in liferent for his liferent use allenarly and the children in fee. In the case of Macdonald v. M'Lachlan, 14th January 9 S. 269. 1831, a separate bond was taken to the husband and his wife and the longest liver of them in liferent, and to the children already procreated or to be procreated in fee, whom failing to the husband himself and to his heirs and assignees. Under this destination the fee was held to be in the husband, the provision of liferent to him not being made absolute by the word "allenarly" or "only," and the words substituting him upon failure of children of the marriage being held to decide where the fee lay. Such questions, however, are always in a great measure dependent upon the circumstances of the particular case, and the solution rests not merely upon the words used, but mainly also upon the intention of the parties, as indicated by circumstances which are looked to in explanation of the terms. Thus, where a sum was settled by the husband's father, payable at his death, upon the husband and wife in conjunct fee and liferent, (an expression which generally leaves the fee in the person from whom or from whose friends the fund was derived,) for the liferent use allenarly of the wife if she should survive, and upon the children nascituri in fee, whom failing the husband, here, although the terms used would appear to indicate more decidedly a fee in the husband, than in the case of Macdonald, yet the fee was held to be in the children on account of various circumstances, viz., the wife's money having been settled on the children, which was held as an equivalent provision to them on the father's side-the interest being made payable to the children, even during the grandfather's life, if both parents should predecease them-a power of division being given to the father, which, if he was to have had the fee, was unnecessary, such power being inherent in a fiar-and the father being taken bound to invest the sum, when it should accrue, at the sight of persons PART II. RENT, AND CHIL DREN IN FEE, conta. 4 S. 110. 16 S. 948. named in terms of the destination prescribed in the contract; Millar CHAPTER VI. V. Millar's Children, 14th November 1833. The presumption in favour PROVISIONS TO of the father, that the fee is in him, is counteracted, if a trust be created PARENT IN LIFE in order to secure the children's provision; Bushby v. Renny, 23d June 1825. Here the father bound himself to pay £10,000 to the children of the marriage at the first term after the death of the longest liver, and to infeft certain trustees for the children's security, the money, if he should pay it to redeem the lands, being to be lent by the trustees on security for payment to himself of the interest during his life and after his death to his wife, and on her death for payment of the principal sum to the children, and failing them in trust for himself and his heirs. Here the settlement as regards the destination was substantially the same as in the case of Macdonald, where the fee was held to be in the father, but the presumption of the fee being in the father was, in this case, held to be redargued by the conveyance to trustees, and by the security given to them in implement of the obligation, and the fee was therefore held to belong to the children. The same decision was pronounced in the subsequent case of Herries, Farquhar, & Co. v. Brown, 9th March 1838, where the opinions of the whole Court were taken, in which opinions there will be found a full examination of the law and decisions upon this subject. The circumstances of the case were these:-In an antenuptial contract, the husband, standing infeft in certain lands, bound himself to pay £20,000 to the younger children of the marriage, payable at such terms and in such proportions as he should appoint, and, failing any appointment, six months after his death equally among the children, interest to run from his death. He granted a precept to infeft trustees for behoof of the younger children in security of the £20,000, and he also disponed his lands to himself and a series of heirs under burden of the provision to the younger children. Infeftment having been taken both by the trustees and the husband, it was held, in an action at the instance of subsequent creditors of the husband, that the trustees were, in virtue of their infeftment, entitled to compete with the diligence of the pursuers, and to rank in their proper order according to the preference conferred upon them by their heritable security. In the case of Cruikshank's Trustees v. Cruikshank, 4th November 1853, it was held that provisions to children under antenuptial contract, payable at majority or marriage, give the children a jus crediti, and that the father, having granted heritable security therefor in favour of trustees, was debarred from competing, after the children's majority, with their claims upon the rents and price of the estate, over which their provisions had been secured without any reservation of his liferent or power of control. The precise effect of a trust is well brought out in Wood v. Begbie, 7th January 1850, where the husband assigned a sum to trustees, with instructions to invest the capital, and pay the interest to him 16 D. 7. 12 D. 963. PART II. during life, and after his death to hold the capital for the purposes of the marriage-contract. The husband having been sequestrated, CHAPTER VI. his creditors were preferred to the liferent, and the marriage trustees to the capital. The effect of the qualifying word "allenarly" will be seen exemplified in Cunningham v. Thomson, 19th June 1827, where 5 S. 814. a bond in terms of a settlement, giving a fund to a wife and her husband in liferent for their liferent use allenarly, and to the children of the marriage in fee, was held to make the parents liferenters and the children fiars. When a fund is vested in the husband and wife in conjunct fee and liferent, the fee, by the ordinary presumption, is in the husband, and his creditors can, therefore, attach it under burden of the wife's liferent.** OF TOCHER TO (3.) Disposal of the Wife's Property.-The usual settlement of the CONVEYANCE wife's property is simply to convey it to the husband. It then forms HUSBAND. a part, but only a part, of the consideration upon which the provisions granted by him are made; and the interests of the widow and children are regulated exclusively by these provisions, which, in their amount and the mode of securing them, will be determined in some measure by a regard to the wife's means. The sum which may be given by the wife's father along with her hand is called the tocher. When she possesses any special fund, such as a bond, or an expectation of property to be acquired during the marriage, the conveyance of such property or expectation to the husband in fee or liferent vests him with a complete right, which will be available to himself or his creditors, although he may have failed to implement obligations in the marriage-contract to secure her provisions; and his non-implement of these does not authorize the wife to retain her own funds, unless they have been specially destined by the contract to form a security for her provisions; Greenhill v. Aitken or Ford, 24th June 3 S. 169. 1824. But where a particular fund belonging to the wife has been conveyed under an obligation to lay it out for her behoof, that gives her a claim preferable to his creditors while the fund exists; Part- M. 9144. ners of the Haddington Woollen Manufactory v. Gray, 20th January 1781. On the other hand, the main consideration for the provisions. settled by the husband in the marriage contract, is the marriage itself, and not the tocher; and, therefore, the husband is liable to make good the wife's provisions, although the tocher have not been paid; Wightman v. Wilson, 30th July 1777. may If it be intended to reserve the wife's property to herself, that be done effectually by excluding the jus mariti, notwithstanding the M. 9201. RESERVATION OF WIFE'S See the case of Myles v. Calman and others, 12th February 1857, where it was held, 19 D. 408. in the circumstances, that a conveyance to the spouses and the longest liver of them in conjunct fee and liferent, and to the children procreate or to be procreate betwixt them, whom failing, to the said longest liver, and her or his heirs and assignees in fee, did not vest the fee in the husband notwithstanding the wife's predecease. PART II. CHAPTER VI. EXCLUSION OF RIGHT OF AD- M. 5842. 11 S. 132. opinion of STAIR, where he says as to excluding the jus mariti :—“ The very right of the reservation becomes the husband's jure mariti, "and makes it elusory and ineffectual, as always running back upon jus mariti AND "the husband himself, as water thrown upon a higher ground doth ever return." This is a subtlety which has long been disregarded; and there is no doubt that both the jus mariti and the husband's right of administration can be effectually excluded, as was done in the case of Murray's Trustees v. Dalrymple, 5th February 1745, by the wife's conveyance, before marriage, for behoof of herself and her children. Assignation by the wife of moveable property, in an antenuptial contract, in such terms as to give to the husband only the liferent with a fiduciary fee on behalf of the children, forms an effectual exclusion of the jus mariti. Such an assignation does not require to be intimated in order to exclude the husband's creditors. They are not entitled to presume, that he obtains the rights conferred by the legal assignation attendant upon marriage, and it is their business to inquire what were the conditions of the marriage; Rollo v. Shaw or Ramsay, 28th November 1832. Where the wife's property is vested in the joint names of the husband and wife, that is notice that the wife has a separate interest, and such property is not attachable for the husband's debt. So, where bank shares were bought with the wife's funds, and the transfer taken to her husband and herself, the bank was not allowed to retain the shares in satisfaction of a debt due by the husband; Gairdners v. Royal Bank of Scotland, 22d June 1815. The jus mariti and right of administration may be excluded also by third parties bestowing property upon the wife and family; Annand and Colhoun v. Chessells, 4th March 1774. Here the wife's father, in conveying his estate for behoof of her in liferent and her children in fee, debarred the husband's jus mariti, and him from the administration and management. The House of Lords affirmed the judgment of the Court of Session, whereby it was found, that neither the funds nor the annual rents were affectable by the husband's creditors. At the same time, the jus mariti is an interest strongly founded in the law, and it can only be excluded, therefore, by words which unequivocally express or import such exclusion. A general reservation of the parties' respective means from the control of each other was held ineffectual to exclude the jus mariti, in the case of Cuthbertson v. Pollock, 22d November 1799. But when property is thus separated from the operation of the ordinary rules of law, it must be kept in a distinct form, as by securities in the name of the wife, or, where it consists of real moveables, they must be inventoried; Macdonald or Duff v. Doig, 29th January 1793. Here furniture belonging to the wife, and settled by antenuptial contract for her behoof, was, notwithstanding, allowed to be poinded for the husband's debt, because there had been no inventory, and it was held F. C. M. 5844. Hume, 206. M. 5848. |