Earl of Kintore v. Countess-Dowager of Kintore and Others

Opinion ( per Lord Fraser, Ordinary) that a claim for legitim cannot be excluded by an antenuptial marriage-contract which debars legal rights without making a provision for the child.

This was an action at the instance of the Earl of Kintore against his mother, the Countess-Dowager of Kintore, sole executrix of his father, the preceding Earl, who died in July 1880, and against his younger brother and sisters, for payment of legitim.

The pursuer pleaded—“(1) The defender the Countess-Dowager of Kintore having in her antenuptial marriage-contract with the late Earl Page: 649 ↓

The defenders pleaded—“(1) On a sound construction of the said antenuptial marriage-contract the pursuer's claim to legitim is effectually excluded. (2) The pursuer is barred by his actings condescended on in the defenders' statement of facts [quoted infra] from insisting in his present claim.”

This raises a question of some importance, and which has not yet been directly decided by the Court; and there is no necessity for deciding it in the present case, if the construction now suggested as to the limited scope of the clause of exclusion in the contract be adopted.