Parent and Child – Legitim – Discharge of Legitim – Antenuptial Contract of Father – Heir-Apparent – Aberdeen Act (5 Geo. IV. c. 87) – Entail Amendment Act 1848 (11 and 12 Vict. c. 36).
By antenuptial contract of marriage an heir of entail in possession bound himself and the heirs of entail who should succeed him in the entailed estates to pay to the child or children of the marriage, other than and excluding the heir who should succeed to him in the entailed estates, certain provisions. Tutors and curators were appointed to such of the children of the intended marriage as should be in pupillarity or minority at the husband’s death, and they were directed to maintain and educate suitably the heir who should succeed him, and keep up an establishment for him till he reached majority; ‘which provisions before conceived in favour of the children of this marriage are hereby declared to be in full satisfaction to them of all bairns’ part of gear, legitim, portion natural, security,’ and co. The eldest son of the marriage succeeded under the entail and also claimed legitim. Held ( aff. judgment of First Division) that the marriage-contract contained no provision for him in lieu of legitim, and therefore that he was not excluded by the contract therefrom. Held, further, that the provisions for children made by the father in his marriage-contract under the Aberdeen Act not being or being capable of being (without the father’s consent) available to the eldest son, they were not effectual to confer an interest in him under the contract in consideration of which legitim could be excluded; and (2) that assuming that under the Entail Amendment Act 1848 the father could have disentailed the estates, a right to share in the marriage-contract fund provided to children would not thereby have been conferred upon the heir, and therefore that in no view was anything provided under the contract in his favour in discharge of legitim.
Judges:
Lord Chancellor Herschell, Lords Blackburn and Watson
Citations:
[1886] UKHL 877, 23 SLR 877
Links:
Jurisdiction:
Scotland
Land, Family
Updated: 03 July 2022; Ref: scu.637734