Double of the Summonds, Dame Margaret Areskine against Sir James Foulis of Collingtoun.

JAmes, &c. Forsuameikle as it is humbly meaned and showen to us by our Lovet Dame Margaret Areskine Re­lict of the Deceased Sir James Foulis of Collingtoun, late Justice Clerk, and one of the Senators of our Colledge of Justice. That where the said persuer therein designed Relict of the Deceased Sir John Mekenȝie of Tarbat be her Letters of Assignation and Disposition Subscribed with her Hand, of the date the last day of May 1661. years (for the Causes therein specified) Sold, Assigned, Transferred and Disponed from her, her Airs and Assigneys; to and in Favours of Mr. Adam Cunningham of Woodhall his Airs and Assignes whatsomever: All and hail her Life-rent Right of the Lands, Teynds and others after specified, to wit, Of all and sundry the Lands and Barrony of Innerteil, therein comprehending the Maynes of Innerteil, Mannor, Place, Houses, Biggings, Yards, Orchards, Dow­cat and pertinents thereof, Bridge, and Lands of Bridge­lands, called the Village of St. Katherines, with the Chapel of St. Katherines, and Gift of Chapellanry of the samen, with the Houses about the said Chapel, and special Pendicle of the saids Lands, called St. Germans-Aiker; together with all Edifices, Yards, Tofts, Crofts, Coals, Coalheughs, Lyme and Lyme-quarrel, with the Mylne, Mylne-lands and Multurs of the samen, Salmond Fishing, and other Fishings, as well in Salt as Fresh Waters, annexis, connexis, parts, pen­dicles and pertinents whatsomever of all and sundry the Lands and Barrony of Innerteil, lyand within the Sheriffdom of Fife as principal: And also of all and sundry the Lands and Barrony of Glengarnock, comprehending the special and par­ticular Lands therein mentioned; and that in special Warrandice and Security of the saids Lands and Barony of Innerteil: And sick like of all and hail the half Lands of over and nether Tyries; with Houses, Biggings and Pertinents thereof, lyand within the: [Page]Regality of Dalkeith, Constabulary of Kinghorne and She­riffdom of Fife, wherein the said Dame Margaret Areskine persuer was infest upon the 25 day of February 1645. Years; and siclike of all and sundry the Teynd Shaves of all and hail the saids lands of Innerteil and Bridge­lands of Innerteil with all and sundry parts, pendicles and pertinents thereof, and of all and sundry the teynd sheaves of all and haill the lands of Sea-field and the saids half lands of Ty­rie, with their parts, pendicles, and pertinents above mentioned; And alse of all and haill the teynd sheaves of all and sundry the lands of Balbartuon, mylnelands thereof and pertinents of the samen; and of all and sundry the teynd sheaves of all and haill the lands of Morislands with their pertinents all lying in the said Parochin of easter Kinghorn, and shirefdome of Fife, and pertain­ing to the parsonage of the said paroch Kirk, specified and con­tained in an Tack set be the Earle of Kinghorn to the deceast Sir, George Areskin then of Innerteil, and Dame Isabel Bruce his Spouse, & assigned be them to the said persuer, together with the Fruits, Rents, Emoluments & duties of the samen, Males, Ferms Kaynes, Customs, Casualities Tack-duties and other services and duties due and payable to the said Dame Margaret Areskin for the saids Lands, Stock and Teynd thereof, and that during the second Marriage. With power to him to Call Follow and Pursue therefore, Decreets and Sentences thereupon to recover, and to remove and output Tennents therintil and to do all other things requisit annent the premisses; And thereby made and constitute the said Mr. Adam Cunnigham her Cessioner and Assig­ney in and to the foresaids Rights and Disposition of the samen: As the said Assignation and Disposition of the date fore­said at more length proports Like as the said Mr, Adam Cunning­ham be his letters of Translation of the dait the last day of May 1661 years for the causes therein exprest) sold, assigned, transfer­red, and disponed to and in favors of the deceast Mr. Alex. Foulis of Ratho, the foresaid Right and Disposition of the Conjunct-Fee Lands, Teynds and others above wirttten made and granted be the said persuer to him in manner above exprest; and [Page]surrogate [...] Translation and Disposition of the date foresaid, at more length bears, And sicklike, the said Deceased Mr. Alexander Foulis of Ratho be his back-band subscribed with his Hand of the date, the last day of May 1661 years (Narrating the foresaid Assig­nation granted be the said persuer to the said Mr. Adam Cun­ningham and the foresaid Translation granted be the said Mr. Adam to the said Deceased Mr. Alexander Foulis) Mention­ing, that the said Ʋmwhile Mr. Alexander Foulis, taking to consideration, that the said Assignation, Translation and Dis­position, and Right of Life-rent foresaid therein mentioned, was made and granted to him, no ways for his own use, Utilitie, and Benefit, but that the samen was only made use of in his Name, and the same borrowed thereto, for the use, Utilitie, and Profit of the said Deceased Sir James Foulis of Collingtoun, and the said persuer his Spouse during all the dayes of their Life­time joyntly for the Intertainment and Aliment of their Family allennerly, and upon thir express Terms, that the samen, or any parts thereof should not be lyable to be affected directly or in­directly with the burding of the saids persons their Debts, by­gone, present, or to come; and that none of their Creditors should have any Action against the samen, or any part thereof: Therefore he band and obleist him to denude himself of the said Life-rent Right, and of all Right, Tittle and Interest which he either had, or could have, claim or pretend thereto, or any part thereof: Likeas, the said Deceased Mr. Alexander Foulis be the Tenor of the said Band per verba de eodem, did denude himself and his Airs therein mentionat thereof; and Band and Obleist him and his foresaids to Dispone, likeas he thereby Assigned. Transferred and Disponed the said Life-rent Right, withall Right, Title and Interest, Claim of Right, or Pos­session which he had, or could pretend thereto, To and in Fa­vours of the said deceast Sir James, and the said persuer in man­ner foresaid, with Power to them to use and Dispone thereupon at their pleasure; for the use and effect foresaid allennerly, and upon the express Provisions and Conditions above writ­ten, [Page]and no other wayes; And in case it should happen the said Perseuer to survive the said Deceased Sir James Foulis her Husband. It is thereby declared, That in that Case the foresaid Right of Life-rent abovewritten was only in trust and to her own proper use and behove; like as in the forsaid case the said deceased Mr. Alexander Foulis band and obleist him and his forsaids, to transfer the premisses in favours of the said per­sewar, like as he thereby transferred the samen in her Favours: As the said back band of the date forsaid, insert and registrated in the Books of our Council and Session upon the 17 of Janua­ry. 1667 years more fully proports. And in like manner be Contract of Marriage past betwixt the said deceased Sir James Foulis of Collingtoun, and the said perswar on the ane and other partes, of the Date, the first day of June and year of God fore­said 1661 years, in contemplation of the Marriage then Con­tracted and thereafter solemnized, the said deceased Sir. James Foulis band and obleist him, to Renounce, Quite-claim and over­give, like as he thereby renounced quite claimed and overgave, all Right Title and Interest which he Jure mariti could have claime or pretend in and to the said persuer her conjunct-fie or lyfe-rent Lands, Teynds and others belonging to her wherever the samen lye within this our Kingdom, Renouncing thereby all Benefit of the Law, or other Benefit whatsomever whilks might accrew to him by the said Contract or any manner of way whatsomever, to her said conjunct fie or Liferent Lands or any part thereof for ever, In Favours of the said persuer, to be used and disposed of at her pleasure, and did thereby take his hazard of what he might have otherwayes by the said persuar, And further the said deceased Sir James boulis did thereby bind and obleis him his airs executors and successors, that in case it should happen him at any time during the Marriage betwixt him and the said persuer, To conqueis and acquire any sumes of money, lands or heretages, or to receive payment of sumes of money due to him, In that case, to imploy the same and take the rights and securities thereof in favors of himself and the said persewar the longest liver of them two in conjunct-fie or lifrent, [Page] [...] the said Ʋmwhile Sir James, his other Airs who are appointed to succeed him in his other Lands and Heretages: As the said Contract of Marriage of the date foresaid Insert and Registrat in the Books of Our Council and Session upon the said 17 day of January 1667. years likewayes more fully proports. And true it is, and of verity, that the said Ʋmwhile Sir James Foulis the said persewers Husband during the time of the foresaid Mar­riage hes Conquest and Acquired, and hes received payment of sums due to him, which will extend to the sum of two hundreth and threescore thousand Merks, which by the foresaid Con­tract he was obleist to imploy and secure upon Lands and He­retages, and take the Rights and Securities thereof, in Favours of himself and the said persewer, the longest liver of them two: And by the foresaid Back-band the Mailles and Duties of the said Lyferent Lands, provided to the said Persewer in manner foresaid, extending yearly to the number of thirty six Chalders of Victual, was to be Imployed for the Maintenance of the said Deceast Sir James Foulis▪ and the said persewer their Fa­mily: Nevertheless the said Ʋmwhile. Sir James Foulis hes not Imployed and Secured the said sum of two hundreth and threescore thousand Merks Conquest and Acquired, and re­ceived by him as said is, and taken the Rights and Securities thereof in Favours of himself and the said persewer and the longest Liver of them two, in Conjunct-Fee and Lyfe-rent, as said is; nor yet did he Imploy the said threttie six Chalders of Victual for the Maintenance of his own and the said persewers Family, but did actually uplift and Intromet with twenty four Chalders of Victual of the said 36 Chalders of Victual, for the particular years of God after specified, of the quantities, quali­ties and pryces after rehearsed, viz 22 Chalders of Bear, and two Chalders of Meal yearly out of the Lands and Barrony of Innerteil, and that for the Cropts and Years of God, 1661, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 85, 86, and 1687 years, each Boll of the said Victual, Meal and Bear over head being worth six [Page]Pounds Money of this our Realm communibus annis of the years above mentioned, conform to the Current pryces of such Victual grow and in that part of the Countrey. And that the said persewer, during the said space of twenty six years, did Maintain the said Deceist Sir James Foulis his Family with all suitable Intertainment; and did pay the rent of his Lodging wherein he Dwelled during the said spaces, and payed all Ser­vants Fees. And albeit, Sir James Foulis now of Collingtoun eldest lawful Son, and appeirand Air to the said, Ʋmwhile Sir James Foulis his Father, and Executor nominate and confirm­ed to him, at least Successor to him in his Lands and Heretages titulo lucrativo post Contractum debitum, and universal Intro­mettor with his moveable Airship Goods and Geir, and Char­ter Chist, ought and should secure the said persewer in an Lyfe-rent Right during all the dayes of her Lyfe-time, of the said Sum of two hundreth and threescore thousand Merks Con­queist, Acquired and received by his said Father, as said is; and to make payment to her of the said 24 Chalders of Victual uplifted by his said Ʋmwhile Father out of her said Lyfe rent Lands; which should have been applyed for the Maintenance of her Family as said is: And that for the particular years of God and Cropts above exprest, of the quantities, and qualities parti­cularly above rehearsed, or liquidat pryces thereof above-men­tioned, extending to the sum of fifty nine thosand, nine hundreth and four Pounds Money foresaid, after the Form and Tenor of the foresaid Contract of Marriage and other Writs above dedu­ced in all points: Nevertheless he wrongously refuses so to do without he be compelled. Our Will is herefore, &c.

Given under our Signet at Edinburgh the twenty day of February, and of our Reign the 4th. year.

Information for Dame Margaret Areskine Lady Castle-haven, Against The Lord Collingtoun.

THE deceist Lord Collingtoun being ingaged in debts above the value of his Estate, In the treatie of Marriage betwixt him and Dame Margaret Areskin, by the advice of Lawyers, there was threttie Six Chalders of victual of the Lady's joynture conveyed before the Marriage in the name of Ratho. for the mantenance of the Family; And in the contract of Mariage Collingtoun did renounce his jus mariti, that his Ladys Estate might not be subject to his Creditors; and their being no­thing to which he should provide her, all her interest in the con­tract did depend upon this Clause, ‘That incase he shall happen at any time during the Marriage to conquesce and acquire, any sums of money, Lands or Heretages, or to receive payment of sums of money due to him, in that case to imploy the same, and take the Rights and Securities thereof in favours of him­self, and the said Dame Margaret Areskin and the longest liver of them two in conjunctfie,’ And for this hope of Conquesce, my Lady renounced the terce of heretages and third of move­ables, competent to her by Law.

My Lady pursues this Lord Collingtoun as representing his Father, for the lyfrent of the sums conquest and received by his Father during the Marriage And condescends upon the par­ticulars sums received by my Lord Collingtoun for 24 Chal­ders of Victual of the Lady's Joynture lands yearly, (besides what was Imployed for the use of the Family) and for Salla­ries, Pensions, and otherwayes.

It was alledged for the Defendar, 1. That it could not be subsumed that My Lord Collingtoun had aquired Lands or Heretages during the Marriage; and that sums imployed for payment of Debts, or clearing a mans heretages from Incum­brances, was never understood Conquesce, but only an accessory Right to the Heretage. And therefore in the competition be­twixt [Page]an Heire of Conquesce, and an Heir of Line, where the Predecessor had a null defective Right, and thereafter had aquir­ed a valide and effectual Right to the same Lands, It was not found Conquest to belong to the Heire of Provision, but to belong to the General Heire, as accessory to the Heretage. 2. a Clause of Conquest, can never be understood to bind up the Fiar, or denude him of the Faculty and Capacity to imploy, or dispose upon the Conquest at his pleasure; and therefore Clauses of Conquesce Im­ports no more, but that ane Heire of Provision, or Relict shall succeed, or lyfrent, what Conquesce remains undisposed upon at the Fiars decease, 3. The last clause (or if I shall happen to receive any Sums due to me) does relate to debts which was then due to Collingtoun, and particularly a sum due by the Marquess of Huntly; and if that sum should be recovered, it was to be lifrented by my Lady. But the Clause cannot be ex­tended beyond sums due to him at the Marriage, and all sums that should become due to him did fall under the former clauses of Conquesce.

It was replyed for my Lady, 1. The clause in her Favours, Is not only a Clause of Conquesce, But to take off all debate, or Cavil that might arise anent the Interpretation of Conquesce, this special Clause is subjoined, that whatever sums my Lord Col­lingtoun should receive, Eo ipso, that he received the sums, he became bound to imploy them in lyfrent to my Lady, and this by the advice of Lawyers, who could expect nothing from the Lord Collingtoun, but his Pensions and Sallaries from the King, to which he had great pretensions; these sums as soon as ever they came to be received, became subject to her Lyfrent; and therefore my Lady has it in her Option, either to insist on the Clause of Conquesce for all the sums of mony that were imploy­ed in the redeeming of the Estate of Collingtoun, or for the Lyf­rent of the sums Lybelled as he received them.

2. Clauses of Conquesce, are most ordinary and known secu­rities, and it were absurd and against the common Faith of Con­tracts of Marriage (which of all others ought to be most Sacred) to render such obligations Elusorie, and at the arbitriment of the [Page]partie ingaged, and debitor in these obleisments. And albeit Heirs of Provision or Conquesce, as they are Creditors, so they do represent and succeed; and as they can have no Action against their Predecessor, so they are bound to have a regard; and the Law in some Cases hath releived them from the severi­ty of their obleisment in favours of their own Successors, and hath allowed them a latitude to dispose, or imploy their con­quest to all necessary and even rational uses; But a Wife is meerly a Creditor, and therefore the obleisment of Conquesce in her favours, ought to be more strictly and rigidly observed then to Heirs. And yet the Law nor practique did never relax any obleisment of Conquesce to tha [...] degree; that the debitor in the obleisment might prejudge the obleisment, and totally evacuat the same; and certainly it were a plain defrauding of this ob­leisment, If my Lord Colligtoun did imploy the conquest of this Marriage, to releive his Estate, of debts contracted in a former. And if this Doctrine hold, if their had been Heirs of this Mar­riage, they should not have had a sixpence, notwithstanding they are provided out of the Conquesce, which would loose all the Faith and Security of Contracts.

3. Whatever latitude the Lords may take, where a Wife is otherwayes provided, and hath only the Conquest as a Gene­ral and accessory clause, yet where a wise gets nothing but the Conquesce it were absurd totally to frustrat and defraud Her.

4 In contemplation of this Conquesce, the Lady did renounce a third of the Estate of Collingtoun, and it is inconsistent with the Reputation or Justice of the Session to debar her from the Con­quesce by sustaining the imployment of the Conquest for re­deeming of that heretage whereof she had renounced her terce.

5. The other half of the Clause puts the debate of Conquesce out of Doors, and founds the Ladies Right upon the precise receiving of mony. And whereas it is pretended that the Clause is only relative to sums due at the Marriage, and not to sums that should become due during the Marriage,

It is answered, 1. This is no distinct Clause, but a separat view or part of the former, viz. And in case he shall happen at [Page]any time during the Marriage to conquesce, and acquire sums of Money, Lands, or Heretages, or to receive any sums of money due to him viz During the Marriage, Which is understood to be repeated, as well at the last, as at the first part of the clause; And if it had been otherwayes designed, it had been easie to have Exprest it thus (presently belonging to him) And the word (due to him) was to exclude my Lady from any interest that she might pretend to sums borrowed and received by him. And it is evident that it is all but one Clause, because the obleisment to Imploy is subjoyned to both. And [...]herefore the words (acquired during the Marriage) must be understood to be repeated in re­lation to the sums received due to him, as well as the sums, Lands, and Heretages, are to be imployed to my Lord and Lady in lyfrent and Children in fie. 2. In common Stile when men speake of sums belonging to them at the time, they doe not say (received,) but in case they shall uplift, or where the sums are doubtful, incase they shall recover; and (Receive) is never used but either in relation to Donations, or where money is offered, and the parties required to receive their Money. 3. It cannot be condescended upon that any sums of Money were due to Collingtoun, but an pretended Debt due by Hunt­ley, which single Debt could never answer the Clause (in case I shall receive sums) And certainly if this Debt had been de­signed, it would have been exprest; for where there is only one particular under consideration, no body uses to express that single thing under a generality, when there is nothing else can be included. 4. If this Clause had been meant of Huntley's Debt, why was the Lyfe-rent only granted, in case the sum were re­ceived, for a mans uplifting and recovering his own was never Conquesce; and therefore if this Clause had been meant to ex­tend no farther then Debts due to Collingtoun the time of the Marriage, the Lady would have been provided to the Lyfe-rent of all Debts due to him without that condition and qua­lity (In case he should receive them.) But the truth is, my Lord Collingtoun was a man of more [...]ngenuity then to have sham'd his Lady with mentioning this Debt, which neither is [Page]nor ever was [...] is but of a few dayes before the Sentence against the Marquess of Argyle: And it was then perfectly understood, that Huntely was to be Donator to Argyles Forfeiture; in so far as con­cerned Huntley's Estate; so that this Debt was for ever ex­cluded. But suppose there were no Forfeiture in the Case; the expyred Comprysings did absolutely convey his Estate; and it was possessed be the Marquess of Argyle be vertue of these Comprysings, and not be the Forfeiture, for this Debt was never worth the regarding, much less to be the only sub­ject of the separate Clause. 5. In this Sense, the Clause had been ridiculous and of no Security to my Lady; for if her right to Lyfe-rent the sums due to Collingtoun did depend upon his pleasure in uplifting and recovering these sums; then the obligment imports no more, then that my Lady should Lyfe-rent what he pleased; for it could not be expected that he would prejudge his Heirs by uplifting sums only to gratify his Lady with a Lyferent: And these absurdities must convince, that this can never be the genuine meaning of the Clause; but the designe is plain, and the words are adapted to Pensions and Sallaries which he should receive as due to him during the Mar­riage: And it is a general Rule in the Interpretation of all Con­tracts and Clauses, That, that Sense and Construction should be admitted, whereby the Clause should not be superfluous, redun­dant, and ridiculous: And in this Case, the Clause must ei­ther operate a Lyfe-rent of the sums Conquest, or of all the sums received; or else all the Provisions in Favours of the Lady, for which she renounced her Terce, and third part, was super­fluous and elusory. 6. By the Clause in the Contract of Mar­riage, my Lord Collingtoun being obliged to Imploy, All sums of Money, Lands, or Heretages, that he should happen to acquire, or sums of Money due to him, whereof he should receive payment during the Marriage: Albeit the Lady might justly crave the Lyferent of all the sums of Money that can be in­structed my Lord Collingtoun received during the Marriage, which is the express Terms in the Clause of the Contract, yet [Page]she declares that she insists only upon the [...] 1. That what Debts my Lord Collingtoun has payed due priot to the Marriage, with Sums of Money acquired and received during the Marriage, that she should have the Lyfe-rent of the same upon this ground; because if these Debts had not been payed, they would have affected this Lord Collingtoun the Son; and he would have been lyable for the samen; so that in so far as the Son and Heir reaps Benefi [...], by Imploying the sums his Father received during the Marriage, for payment of Debts prior to the Marriage, for which otherwayes he would have been lyable, as representing his Father, the Lady ought in so far to have right to the Lyfe-rent of the sums with which the Lord Collingtoun payed the prior Debts 2. The Lord Col­lingtoun did not only reap Benefit by his Fathers payment of prior Debts with sums of Money that he received during the Marriage, but also the subject that he has acquired by these sums he received during the Marriage, being extant at the dis­solution of the Marriage: The Lady by vertue of the foresaid Clause in her Contract, must have Right to the Lyfe rent of what was acquired during the Marriage, and extant the time of the Husbands Decease; and therefore in making the Compu­tation of what the Lady should have Right to Lyfe-rent, the Lord Collingtoun's condition, and the condition of the Estate is to be considered, as it was the time of the entry into the Mar­riage, and as it was at the time of the D [...]ssolution thereof; and in so far as the Estate is meliorat, and what the Lord Colling­toun had more at the Dissolution of the Marriage, then he had the time of the entering into the Marriage, that must be un­derstood to have been acquired during the Marriage, and the Lady must have the Lyfe-rent of the samen; especially seing in all such cases, where the Wife is provided to the Lyfe-rent of what should be Conquest and Acquired during the Mar­riage: The Lords are alwayes in use to take Tryal of the Hus­bands Condition, the time of the entering into the Marriage, and of his Condition the time of the Dissolution thereof; and what ever his Condition was better at that time, then it was at [Page]the time of the entring into the Marriage, that is esteemed Conquesce to give the Wife the Benefit of the Lyfe-rent of the samen, which is clear by several Decisions, and particulary the 4th. of March 1623. Skeen contra Robieson ‘Where the Husband by his Contract of Marriage being oblidged to give a Lyferent of the Conquesce during the Marriage to his Wife, and the Fie to the Heirs of the Marriage: And he having acquired certain Lands and Fishings that did hold of the Town of Aberdeen in his Sons Name; and the Relict ha­ving pursued the Son, as representing his Father upon the passive titles, for the lyfrent of the Lands and Fishings: And it being alledged that she could not have the lyfrent of these Lands and Fishings because by ane Act of the Town of Aber­deen which was confirmed by the Queen, the Lands and Fishings could not be fewed nor lyfrented by a Woman; upon which the Lords found that albeit the Relict could not lyf­rent the Lands and Fishings, yet the Heir should give her Damnum et interesse, because the Husband could not be al­lowed to make any purchass that could prejudge the Wise of her lyfrent. And the 3d of July 1627. The Lady Dumferm­ling contra the Earle her Son, Where by the contract of Mar­riage, the Lady being provyded to all Lands that should be conquest during the Marriage, and her Husband having ac­quired certain Lands during the Marriage, and taken the Rights in his Sons name, the Lords found that the Lady had the right of the lyfrent of the same: albeit it was alledged that the price of the Lands was not payed, but was resting the time of his Fathers decease, and that the Son as representing him is ly­able for the same. And it is subjoin'd that the like Decision was done the 11 of Januar. 1632. The Lady Bonningtoun contra Hadden and the 27 of Jun. 1676 The Earl of Dumfermling contra the Earl of Callander, where the Lords found that a general Clause of Conquesce did extend to what the Husband had acquyred during the Marriage, more then what he had the time of the contract of Marriage, & with the burden of all his Debts contracted during the Marriage; that was esteemed [Page]Conquesce which was free over and above the debt contracted during the Marriage.’ By which it is evident that in so far as the Estate was meliorat, and in a better condition the time of the dissolution of the Marriage, than it was the time of the con­tract, that was to be esteemed Conquesce; and that no debts were to be deduced, but these that were contracted during the Marriage. And as to the Decisions adduced for the Lord Col­lingtoun the 26 of November. 1629 Where the Lords found that Lands being acquired be the Husband from the Seller of the Lands, and thereafter disponed in few again to the same seller for ane greater few duty than was contained in the sellers pri­ors Rights, The augmentation of the few duty be the Husband could not be repute ane Conquesce, whereof the Relict might Claim a lyfrent, as coming under the clause of Conquesce of the contract, And in the case of James Wauchop contra the Laird of Niddrie, in the year 1683▪ where the husband having right to the Lands prior to the Marriage, and during the Mar­riage having acquired partial Rights, were not found to fall under the clause of Conquesce.

It is answered that these Decisions doe not meet this case; for as to that of the Lady Dumfermling against her Son, It was in the case betwixt a Superiour and a Vassal, where a Superi­or having pursued a Reduction against his Vassal, and the Vas­sals rights being found null for want of Confirmation, and the Superiour having given a new right to the Vassall for augmen­tation of the few-duty; that was not found Conquesce, In re­spect there was no new acquisition, the Superior having right to the Lands before the Marriage; and his right to the property of the few being only declared after the Marriage, by reduceing of the Vassals right; and therefore albeit the Superior gave a new right to the Vassal, augmenting the few-duty, That augmenta­tion was not repute Conquesce, to give the Relict the benefit of the lyfrent thereof: And that this was the case of that Decision, it is cleare by the Decision the last of June 1629. Betwixt the same Persons. And as to the Case of Niddrie and his brother, first the question there was, betwixt the Heir of Line, and the [Page] Heir of Conquesce of the second Marriage, which does not meet in this case. Next the partial rights acquired by the hus­band after the Marriage, was found not to fall under the Clause of Conquesce, in respect that the Husband had belonging to him of money, and other estate of great value, prior to the Marriage, of which, any sums of money he depursed after the Marriage in acquiring rights to the Lands, was the true product, and might be ascribed to the sums of money, and other estate which be­longed to him before the Marriage.

And as to the case of Cowan contra Young the 9th of Febru­ary 1669, where a Father having given a bond of Provision of 400 pound to a Daughter of the first Marriage, was sustain­ed, and found to affect the Heir of Conquesce of the Second Mar­riage; And the 15 of July 1673 Robertson contra Robertson, where the Lords found that a clause in a contract of Marriage providing the lyfrent of the conquesce to the Wife, did not hin­der the Husband to give competent provisions to the Children; And Smith contra Muire, 23 December 1668. Where it was found, that such a clause did not prejudge Creditors; but the Relict that intrometted with the moveables falling under the conquesce, was found lyable for the Debt; And in the case of Frazer contra Cumming, the 8 of December 1687. Where the Lords found the Provision granted to the Children of the first Marriage was to be deduced out of the conquesce in prejudice of the Relicts lyfrent, as also that his debts ought to be deduced and 11000 pound that he had reserved to himselfe be the contract of Marriage, and the superplus only to be repute Conquesce.

It is answered, that the case of Cowan & Young, being betwixt a Child of the first Marriage and the Heir of Conquesce in the second Marriage, it did not meet the case of a lyfrenter; next it was only but a small provision granted be a Father to his Child of the first Marriage, whom be the Law of Nature he is oblidg­ed to provide. As also in that Case the Heir of the second Mar­riage had a special provision, and something also of the Con­quesce, so that the Fathers granting a moderate provision to a Child of the first Marriage, was not understood a defrauding [Page]of the Children of the second Marriage. And the case of Robert­son contra Robertson, albeit the Lords found, that such clauses could not exclude competent provisions to the Children of the same Marriage, which was most Just, yet it is with this ex­press quality, that there were competent means, for a provisi­on to the Mother remaining, and that the husband had done no­thing fraudfully in prejudice of that clause. And the case of Smith and Muir, was betwixt a Relict and a Creditor, And it is not controverted but that a true and Lawful debt contracted by the Husband during the Marriage, should deduce off the Conquesce, And as to the Case of Frazer and Cumming it was thus, By contract of Marriage betwixt Alexander and Christian Fra­zers, The Husband did provide his Wife to ane certain yearly Annuitie in lyfrent, and likewayes to the lyfrent of the clause of conquesce, reserving to himself certain tenements of Lands and others extending to 11000 pounds; and all the question there was in relation to the import of the Reservation as to the 11000 Pounds, if the Husbands Debts should affect the 11000 pounds, or be deduced out of the Conquesce. Upon which the Lords found that the import of the clause of the Contract, is, that in the first place, There ought to be deduced out of the Hus­bands Estate extant the time of his Decease, the Debts then due; and next that the 11000 Pounds is to be deduced, and what remains only is to be repute Conquesce. By which it is evi­dent that the 11000 Pounds that belonged to the Husband the time of the entring into the Marriage, was deduced in re­spect of the express reservation. And albeit a Husband may grant a Provision to a Child of the first Marriage, yet it will not follow, that he can do such Deeds in defraud of the Relict, as may absolutely evacuat the Clause. As also in that Case, the Relict had a special Lyfe-rent Provision, besides the Lyfe-rent of the Conquesce. And that Decision is so far from making against the Lady, that it makes expresly for her: In sua far as in that Case, the Lords ordained Probation to be led for proving the Condition of the Husbands Estate the time of entering into the Contract of Marriage; and [Page]what was the worth and value thereof the time of the Dissolu­tion of the Marriage: To the effect that in sua far as the Hus­bands Estate was better the time of the Dissolution of the Marriage, than the time of the Contract: The Relict might have the benefit of the Lyferent thereof as Conquesce. And as to any other Decision alledged upon for the Lord Col­lingtoun, they are either in the Case of a Competition betwixt the Heirs of a first and second Marriage, or in the Case betwixt Heirs of second Marriages and Creditors, which does not at all meet this Case.

And whereas it is alledged, that the Lady has aliunde, a suf­ficient Joyntute, albeit she get nothing of the Lord Collingtoun, and so is not destitute of a Provision.

It is answered, That albeit the Lady have a Joynture aliunde, yet seing she has nothing from the Lord Collingtoun, except the House and Yards of Collingtoun, which is not worth the speaking of; yet that can be no Argument why she should not have a Joynture off the Lord Collingtoun, be vertue of that clause in her Contract of Marriage, his Father having received so great sums of Money during the Marriage, partly out of the Ladie's Joynture, and partly out of his Pensions and Sallaries, by which he made his Estate so much in a better condition the time of the Dissolution of the Marriage, than it was the time of the Contract: And albeit the Lady get a large Joynture▪ yet the Lord Collingtoun will not be destitute of a Provision, seing he has gotten a large Estate with his Lady.

Additional Information for the Lady Castle-haven; against the Lord Collingtoun,

TO evince the Ladie's Claim beyond exception; and in answer to all the Practicks that have been, or can be obtruded: The Pursuer not only insists upon the foresaid clause anent the Lord Collingtoun his receiving payment of [Page]sums of Money due to him during the Marriage: But farther doth press preceisly the former clause of Conquesce, viz. That the Lord Collingtoun hath Conquest and acquired sums of Mo­ney during the Marriage: For seing that it is undeniable, that he hath cleared and reconquest his own Estate, which before, the Marriage was sunk in more Debt then it was w [...]rth; and that this could not be done without his acquiring of sums of Money: It is evident that he hath acquired sums of Money, and that these acquisitions are really still extant▪ if not in Spe­cie; yet in their undeniable effects. If the Pursuer were on­ly insisting upon Collington's Conquescing and Acquiring of Lands and Heretages, and urging that the Reconquescing of his Estate was a real Conquesce. The practick touching the clearing of old Wodsets, and the purchasing of accessional Rights▪ and finding these to be no new Conquesce of Lands, might be objected with some shew of reason; but the Case of these Practicks was only concerning Conquesce of Lands, which is not the principal point now in Controversie: But the point here urged is, That the Lord Collingtoun did purchase and acq [...]ire sums of Money; and this is evidently made out both that he did acquire them, and that they are yet truly ex­tant; so that its impossible to frustrate the Pursuer of the be­nefit of this head of the Conquesce, unless the Defender can as plainly make it out, that the Lord Collingtoun did Recon­quesce the Estate, by sums not of his own acquiring, but by the Defenders Tocher and Means, which can never be made out; seing the Conquesce of the Estate doth far exceed all the Portion the Defender got with his Wife, and there is a great part of that yet unreceived. Neither is it to any purpose to de­bate here, how far the Lord Collingtoun might exhaust his Con­quesce by contracting of Debt, or doing other Rational Deeds, seing that the Debt which the Lord Collingtoun left at his Death, is always acknowledged, that it is to be deduced; and for other rational Deeds there is none can be alledged, except the conveyi [...]g of his Estate to his Son and appeirand Heir the Defender, which is no exhausting, but a transmitting of the [Page]Conquer [...], [...] to perform his Fathers obligment. Its true, it is alledged that the Lord Collingtoun's paying of his old Debts with the Mo­neys that he acquired, were rational Deeds: But it is as true, that these Deeds does no wayes exhaust the Conquesce, but rather establish it: It being plainly ridiculous for a man to al­ledge, that his getting and applying sums of Money for the payment of his Debt, and clearing of his Estate, and thereby making himself Richer, should be an exhausting of Con­quesce, since it is absolutely the best evidence can be brought for it, and the best use that can be made of it; so that all the practicks about the exhausting of rational Deeds are here Im­pertinent, and prove nothing. Nor is there the least Injustice in what the Defender alledges for a great Absurdity, viz. That the Heir Male of the Marriage (if any had been) should by this means have carried away my Lord Collingtouns Estate from his Son in the former Marriage: For not to insist upon the good Estate, the Lord Collingtoun hath got by his Mar­riage, what could be more reasonable then that the Heir Male of the Marriage should have the Fee of what was really ac­quired during the Marriage.

And there fore seing this Obligment of Conquesce is made to the Pursuer in her Contract of Marriage, and that its undeni­able that the Lord Collingtoun did Conquesce and Acquire sums of Money, which are yet most really extant in their abiding effects: It is impossible the Lady can be deprived of her Lyfe­rent thereof, in sua far as the sums were truly acquired by him, and not brought into the Family by the Defender aliunde.

Information for my Lord Collingtoun, against. The Lady Castle-haven Relict of the deceast Lord Collingtoun his Father.

WHen the deceased Lord Collingtoun was Married to his last Lady in Anno. 1661 he was under considerable burden of Debt; and least my Ladies Joynture of 80 Chalders of Victual, [Page]by her former Husband might be affected by my Lords Credi­tors, several conveyances thereof were made in trust and by the Contract of Marriage my Lord did Renounce his Jus mariti to the said Joynture▪ and took his hazard of what he might have otherwayes by my Lady, and farther my Lord bound and ob­lidged him, that in case it should happen him at any time dur­ing the Marriage betwixt him and his said Lady, to conquesce and aquire any sums of Money. Lands or Heretages, or to re­ceive payment of sums of Money due to him; in that case, to im­ploy the samen in favours of himself and his future Spouse in con­junct fie and lyfrent, and the Heirs male to be procreat betwixt them, which failing to my Lord, his other Heirs who are appoint­ed to succeed him in his other Lands and Heretages

There is a process at the Ladies instance against this Lord Collingtoun as representing his Father upon the passive Titles, libelling that "the defunct did after the Marriage, conquesce and acquire the Sum of 260000 Merks, and concluds that the defender should be decerned to imploy the same for the Pursuers Lyferent use: And urges that conclusion upon the clause of the Contract of Marriage above mentioned, containing two separate and distinct obligments: The one, To take the Lands, Heretages, and sums of Money to be Conquesced during the Marriage: And the other, To Imploy all sums of Money due to him, whereof he should receive payment, during the Marriage, likewise to my Ladie's Lyferent use; Whereby it doth appear, that my Lady did not intend to rest upon a clause of Conquest in the usual Style, but did farther provide for her own security, by adjecting the posterior Clause, oblidging my Lord to imploy all sums of Money to be received during the Marriage, to her liferent use, which was most Just and Rea­sonable, seing my Lords condition at the time did not suffer him to secure any present joynture, his Estate being affected with many incumbrances, it was therefore highly reas nable that what ever sums he should receive during the Marriage, should be secured for her liferent use.

It was answered for the Defender denying the passive Titles, [Page] [...] o [...] these Clauses con­tained in the contract of Marriage, unless the Pursuer will con­descend upon Lands, Heretages, sums of Money, Conquest during the Marriage, and extant unconsumed at the Dissoluti­on thereof: Or that the Defunct had received sums of Money due to him the time of the contract of Marriage: for as to the Clause of Conquesce, There has been no point in our Law more fully and clearly determined, than the Import thereof both in relation to Heirs of Provision and Relicts in Contracts of Mar­riage: for the various circumstances of Children, or Relicts having the benefit of those Clauses, have prompted them upon several Specialities, to endeavour the extensions of such Clauses in their Favours, upon some pretences of differences from the Cases formerly decided, whereby upon consideration of the most important Decisions in that point, it will appear that the Lords have scarce ever varied, since there were Practicks up­on Record, anent the import of Clauses of Conquesce, which they have ever found to give Relicts, or Heirs of Provisions, the Benefit of what Conquest did remain unconsumed at the death of the Husband, or Father; and that such Clauses could not hinder the Acquirer from the full, free, and unaccountable Ad­ministration of his own Estate during his Life, and to dispose of his own by any just or rational Deed at his pleasure: pro­viding that nothing were done fraudulently for evacuating of such Clauses. And farther, The Deeds of the Acquirer are not only sustained when the Conquesce is consumed, but even when the Conquesce of Lands, Heretages, or sums of Money is extant at the dissolution of the Matriage; the same is affect­ed and burdened with all the Debts of the Acquirer, not only for onerous, but also for gratuitous Causes; there being always a just and rational consideration, such as the Provision of Chil­dren with suitable Portions; and even a Provision of an eldest Son hath been frequently sustained as a paternal Deed; and if in any Case gratuitous Debts or Deeds, of the Acquirer have been annulled, at the instance of Relicts, or Children of a Marriage; the same has always been upon the head of Fraud, [Page]or that there was no just cause for making such Deeds, and these Deeds are not only sustained in favours of Creditors to affect the Conquesce, but they have even been sustained as bur­dens upon the Conquesce, whereby Relicts or Heirs of Provisi­on have no Action against the Representatives of the Acquirer, to Disburst the Conquest of these Debts: The Decisions in this matter are so numerous, and the Cases so various, that it were tedious to relate them; but the Defender did both in his Debate, and by a particular Note a part offer a few of them to the Lords consideration, whereby it will appear, that the ground of all is one, viz. That Conquesce is burdened with all rational Deeds of Administration of the Acquirer.

As to the second Clause, whereby it is pretended, that, All sums of Money due during the Marriage, and received by the Defunct, ought to be Imployed for the Pursuers Liferent use. It is answered, That the Lords are intreated to consider the Clause as it stands in the Contract, which is very far from Im­porting that Sense which is fixed upon it: For by the first Clause, the Conquesce during the Marriage was designed to be secured in the ordinary Style of Conquesce: And by the second all sums due to my Lord before the Marriage, were designed to be secured to my Lady, and that which was in Prospect, was a Debt due upon the Estate of Huntley; And my Lord had just ground to expect, that the same might have been made effectual to him, who was then in great Favour, and had suffered much for the King; and it was not sit to express the Debt particularly in the Contract, least being propaled, it might have been affected by his Creditors; and as this was the true Communing, so it is impossible the words of the Clause can bear another Sense, which runs in these Terms, viz. He obliged himself in case it should happen, him to purchase, or acquire sums of Money, Lands, or Heretages, or to receive payment of Debts due to him, to imploy, &c. Whereof the construction of the last Clause is, in case he shall happen to receive payment of sums due to him, where Sums due, must in propriety of Language signify a Preterit, that the sums [Page] [...] [...] ­turo, was in case it should happen him to receive these sums: And the prospect of receiving of sums, must alwayes pre­suppose the sums due. And the first end of the Clause relating to Purchase of sums thereafter, the natural Alternative sub­joyned to that Provision, is sums dew already, whereby all sums were secured to my Lady, whether due before, or pur­chased after the Contract, with the legal burden of my Lords full and free Administration during the Marriage. And where­as the words of the Clause (as the Pursuer would construct them) run thus, In case it should happen my Lord during the Marriage to receive payment of sums deue; even this con­struction, though it be not natural, or suitable to the Clause, yet it alters not the Case one hairs breadth: For in that con­struction the words (during the Marriage) which signify Fu­turition, have not the least relation to sums due, which are still in Preterito; but they do only relate to the receipt of the Money: So the Clause doth import, that if sums then due should be received during the Marriage, they were to be Im­ployed; but it is altogether force against the natural con­struction to mention these words, During the Marriage, In the first Clause, which can neither relate to the Receipt of the Money: Because if that Money upon the Estate of Huntely should be received or secured, though after the Dissolution of the Marriage, the Pursuer would have a Liferent thereof by the Clause, which she could not claim, if the condition run, In case during the Marriage the Money were rece ved: Nei­ther is it possible that the words, During the Marriage, can relate to sums due: For Sums due during the Marriage, is Non­sense, Sums due, being Preterite, and during the Marriage, being then Future; unless for my Ladies Conveniency, she be allowed to add a word or two, to make the Sense as she would have it; and that she should be permitted to Interpret the Clause, in thir Terms, viz Sums falling due, or becoming due during the Marriage, For without the Addition of these words, or other of the like Import, it is impossible in na [...]ure [Page]that ever the [...]e words [...] by any construction that can be forced upon the Clause, as it stands: And if such violence were put upon it, then it would still disagree with what has been evidently communed, viz, That Huntleys Debt already due should be Liferented, if re­ceived: For if only sums falling or becoming due Thereafter, were to be imployed, then there were no Obligation, as to these which were already due; And it would be a wonderful streatch that could make the same words signify both Preterite and Future.

Secundo, Suppose the words of the Clause should be strain­ed (as the Pursuer contends) to an Obligment of Imploying all sums due during the Marriage; yet it is not possible to ex­tend the Importance of that Clause, farther than an ordinary clause of Conquesce; and consequently the Husbands Obliga­tion would only be prestable with the burden of all rational Deeds: For the Clause of Conquesce oblidges, to bestow, All sums of Money Conquest during the Marriage: And the second Clause obliges (as is pretended) to Imploy, All sums falling due during the Marriage to be received by the Defunct; Which is all one Clause; for all sums falling due during the Marriage, that the Defunct could receive, must be sums Conquest during the Marriage; and consequently if the Obligment to imploy the Conquesce, cannot secure the Pursuer from the burden of all rational Deeds, neither can the Oblidgment of imploying sums falling due, which is the same thing: And it is not the variation of the Style, or words, that will evert the effect of such a train of Decisions; nor is it possible that the Defunct, or any reasonable man would have agreed to such an extravagant Clause, where­by all his Fortune was then wholly over-burdened, so he should have been Incapacitate for ever to render it in a better condition for himself, or his Heirs: For though in this Case there be eventually no Children of the Marriage, which might probably have existed, my Lady being then little past 40. And being as careful to provide for them, as her self; yet if they had existed, the Defunct would have been Incapa­citate [Page]that his eldest Son might succeed, which in consequence would have drawn his Creditors upon him; that he could not have had his person safe, when they found that he could not apply one sixpence for their payment out of what he had, or could acquire.

It was replyed, that the Pursuers Lybel is most Relevant, both upon the Conquest, and subsequent Clause: And albeit, the Pursuer doth not alledge, that any sums of Money, Lands, or Heretages, Conquest during the Marriage, are extant, se­ing the Defunct did apply these sums acquired, and falling due during the Marriage, for payment of the Debts affecting the Estate and Lands of Collingtoun. The Defunct being Locu­pletior factus, by applying these sums for the Relief of his own Estate, which by the Conrract ought to have been imployed for the Pusuers Lyferent use, the Lady ought to have the bene­fit thereof, and doth not claim any Lyferent of sums spent and consumed; but where there is ane existing benefit inriching the Defunct, she ought to have a lyfrent of the Lands releived to which she restricts her lybel, and craves no more neither upon the first nor second Clause of the Contract. 2. Conquesce in fa­vours of Wives or Children, is alwayes understood in so far as the Husband is richer at the Dissolution of the Marriage, than he was at the time of the Contract, And the defunct being richer in the value of the hail Lands redeemed, my Lady ought to have the lyfrent thereof. 3 Decisions in matters of Conquesce have varied according to the circumstances of the cases Debated, and all of them have this notable difference from the Pursuers Case, that in these Decisions, the Relict had special suitable provisions, and the Conquests were only adjected as general uncertaine Clauses upon which the Relicts did not depend, But here there is no special provision, except the House and Yeards of Collingtoun, and all that was depended upon, was the clause of Conquesce which was advised by my Lord Dirling­toun, and eminent Lawyers, who thought fitter to take the defunct obliged in the termes of the Contract than to take a [Page] [...] it cannot be imagined that so eminent a Lawyer would advise a clause that would be absolutely Elusory, tho' the defunct made his fortune during the Marriage, 4. There are also several De­cisions which fortify the pursuers Case, as particularely a deci­sion Skeen contra Robertson. 4 March 1624. where a band of Provision to a Daughter was found to be lyable to the Relicts lyfrent by her clause of Conquesce. And in the same case, the Hus­band having acquired right to a Salmond Fishing near Aber­deen, which by the custom of the place could not be bruiked by a Woman, yet the relict by her Conquesce was found to have utilem actionem against the heir for the value, And in the case of the Countess of Dumfermting against her Son (Lands be­ing conquest originally in the name of the eldest Son) the Countess was found to have right, to Lyfrent these Lands tho' never in the Person of the Father, The like [...] Where a Right originally acquired in the name of a second Son, was also affected by the Relicts lyfrent, upon a clause of Conquest. 50 The Decisions adduced in the Case of Children provided to Conquesce, import nothing; because all Children doe represent the Defunct, in so far as they have benefite by him; whereas the Relicts are most favourable Creditors, and the Decisions adduced in the case of Relicts are of no moment, as that Lands conquesced, or burdened with the Debts due ex­presly for the purchase thereof, nothing being reckoned but with deduction of Debts during the Marriage. And in the case of the Lady Dumfermling against her Son 26. November. 1629. Where the Superiour having acquired the property of Fews, and having again fewed the same Land for greater Few duties, These additional Few duties were not reckoned Conquesce, Because the Right of the Fews came to the Husband by Vertue of Irritancies contained in the Fewars Charters, incurred before the Marriage, and whereby no duty out of these Lands could be reckoned Conquesce during the Marriage. 6. The Pursuer did not rest in a single clause of Conquesce to which all the Decisions did relate, but did farther provide for [Page]her Security by [...] to imploy all Sums during the Marriage, which must at least oblige the Defunct in so far as he and his Heires were Lucrati by imploying these sums for the reliefe of his Estate, which clause must either have that import, or none at all; For no body can imagine that the Pursuer would consider that uncertain claim upon Huntlies Estate to be of any value, and if nothing else had been considered, that would have been particularly ex­prest: and it was most rational that the Defunct should grant such an obligement, Because my Lady by the conveyance of her Joynture did secure 36. Chalders Victual for the main­tenance of the Family, which being sufficient for maintenance, and all necessary expences, it was most Just that what other sums might be received by the Defunct, should be imployed for the Ladies lyfrent use, yet notwithstanding of the setlement at the Contract, It is offered to be proven that my Lord by him­self did intromet with 24. Chalders of the victual allocat for the entertainment of the Family, by which means my Lady was necessitat to take up her Joynture in the North, which she had disponed to her Children at the time of the Contract, and to consume the same for the Intertainment of the Defuncts Family. So that it cannot be thought an invidious claim, that my Lady should desire her lyfrent, equivalent to the debts payed by that part of the Joynture, which was allocat to the in­tertainement of the Family.

It was duplied, that all the pretences insisted upon Joyntly or separatly have no shaddow of relevancy in them, and 1st, As to the first Alledgance viz. That the Pursuer insists only for a lyfrent of what is extant Conquesce during the Marriage, by relieving the Estate that was overburdened, and thereby was Locupletior factus. It is answered, that as the lybel could not relevantly conclude the imployment of all sums purchased and received during the Marriage, but with the burden of all ratio­nal Deeds So neither can it be sustained, as it is now restricted, for the lyfrent of the Lands relieved, and in quantum the De­funct was Lucratus; because Law doth allow all Husbands a [Page]free and [...]ull Administration, and they [...] of Conquesce for what is consumed by that administration, and as they might have wasted, and spent all unprofitably, so much more might they apply the same for payment of debts, which is not only a rational but a necessary deed, and if the Cre­ditors had not found the Defunct so just in his Inclinations, they would have compelled him thereto, either by per­sonal diligence, or by affecting his Estate; and the pretence of Locupletior factus imports nothing, unless the Pursuer could subsume in the terms of the ob­ligment that the Defunct had been Locupletior factus in Lands, Heretages, or sums of Money, which here cannot be alledged; for the Defunct was only Locupletior factus, by payment of his urgent Debts, which is neither a frau­dulent administration, nor was he thereby enriched in the Par­ticulars enumerat in the clause of Conquesce; and consequent­ly my Lady had no Interest in that gain: for clauses of Conquesce are strictly interpret, and never extended beyond the precise Words; therfore a wife having right to Conquesce of Lands, hath no right to sums acquired, and she who has right to Lands and sums, has no right to Victual, Plenishing, Plate, Jewels, or moveables of any sort, So that if the Defunct at his decease had been worth 10000 pounds Sterling, in other moveables than sums of Money, the Pursuer could not have acclaimed any in­terest therein, which may satisfy the Lords that there was not such an anxious concerne to make this Conquesce secure, when Goods and Geir and all moveables were omitted in the Clause, which are oft provided as Conquesce, and as the Defunct had power to have turned all his free Estate in such moveables, so much more could he pay his urgent Debts, and releive his an­cient Estate, without providing the same to his Lady, and the Children of his second Marriage, to the exclusion of his legal Heirs, 2. The releiving of the Lands of Collingtoun▪ cannot in Law be reckoned a Conquesce of these Lands, because a Con­quesce Is a new few to which the Defunct neither did, nor could succeed, as Heire to any of his Predecessors: and the Defender [Page]desires that the Pursuer would condescend upon any former practick, where ever a Wife or Heirs of provision did pretend that a Husband, or Father, could not pay his Debts in prejudice of a Conquesce; so that if there be little decided in this, it is because few or none have ever pretended to call it in Question; on the contrary all that is found to approach to this Case, is a debate betwixt the Countess of Dumfermling and her Son 26. November. 1629. And Fraser contra Fraser lately decided. By the first of which Decisions, the Lords found ‘That the Earl of Dumfermling having acquired the right of property of certain fews during the Marriage which he fewed out again for greater few-duties, that the Countess had no interest in these additional Few duties by the clause of Conquesce.’ And whereas it is pretended that the ground of this Decision was, be­cause the Fews were declared Null, upon irritancies before the Marriage, this alledgance, is gratis dictum and without the least vestige of reason from the Decision, which was upon just grounds; because the Earl having a Dominium Directum, any improvement of that Dominium during the Marriage was not regarded as a Conquesce. And the Lords had formerly great re­gard to this Decision, in the case of the Laird of Niddrie against his Brother; where the Father having a right upon the Lands of Lochtoure preceeding the second Marriage, albeit the same would have been ineffectual in competition with Rights acquir­ed during the second Marriage, yet the Lords found, that the posterior rights were presumed to have been acquired for vali­dating and compleating the anterior Right, and that they did accresce thereto, and the Son of the second Marriage had no in-Interest therein as Conquesce And in the case of Fraser and Fraser, the Husband at his Contract did put a valuation upon the Estate he had over and above certaine Ackers of Land, which he declared should not be estimate any part of the Con­quesce, yet the Relict having acclaimed a lyfrent of the Con­quesce during the Marriage, the following points were therein decided viz. 1 That the Father having immediatly after the second Contract provided 6000 Merks, to his eldest Son, [Page]beside the forsaid capital of 11000 pounds, and his Daughter to 5000. Merks, and allowed 1000 pounds for her Wedding Cloaths, and having payed a great part of these sums very shortly after the Contract, before it was possible to have ac­quired so much money as could have payed the same, yet the Lords found, that these sums so contracted, and payed, were not to be taken off the capital of 11000 pound of his Estate before the Marriage, but the whole capital foresaid behoved to be de­duced before reckoning the Conquesce at the Dissolution 2. In that case, they found that all Debts were to be deduced, both those that were prior, and those that were posterior to the Mar­riage; as appears by the debate immediatly preceeding the Interloquitor, which was done upon deliberation by the whole Lords, and thereafter represented of new by two several Bills, containing the whole favourable circumstances of the Case, and particularly that the Relict had but a very mean provision be­sides the Conquesce, upon which she could not live; all which appears by the forsaid Decreet, marked at the several debates and interloquitors; and what is now pretended is far less fa­vourable then any of these Cases.

To the second alledging, that Conquesce is alwayes under­stood, in sua far as the Husband was richer at the Dissolution then at the Contract of Marriage. It is answered that the grounds abovementioned doe fully satisfy this pretence, for the estimation of the Husbands being Richer, must be made with re­lation to these particulars whereof the Contract is provided to the Wife; and if the Husband have provided a Wife to lyfrent the Conquest, Lands, and Heretages only; it is not to be considered how far the Husband is become Richer in sums of Money, Goods and Geir, whereof, the Wife hath no clause of Conquesce, or if the provision of Conquesce be of Lands, Heretages, and sums of Money, as in this case, tho' the Hus­band had purchased a great Estate in Jewels, Plate, Victual, Cattel, or any moveables, that is not to be considered but only how far he is become richer in Lands, Heretages, and sums Conquest which is not pretended in this Case but only that [Page]he is richer by payment of his Debts, and re [...]eiving of his Lands. And seing my Lady did not take my Lord oblidged to imploy all Goods, Geir, and movables whatsomever, it is a demon­stration that she did not intend to tie him so closs as is now pre­tended, but left to his own discretion whether he would enrich himself in these particulars provided for her lifrent-use, or in others wherein she had no interest.

To the third, it is admired that the Lady should recur to Decisions to fortify her pretence, for in all the Decisions for above sixty years there is no variation, except in that pretend­ed Decision adduced be the Pursuer Skeen contra Robertson, which has not been seen by the Defender not being in Durie nor any citted known Writter, and whereof the circumstances doe not appear, and all others doe agree in this, that a Hus­band, or Father, may not only do all onerous Deeds, but may give Liberalities and Gratuities even to Children, or to the Heir where there is a rational Cause, much more may urgent Debts be payed, whereto the Acquirer could be compelled.

And as to the only defence against all the Decisions, upon the singularity, that the Pursuer had no special provision, and that by the advice of an eminent Lawyer. It was thought fitter to take these general Clauses, then a provision of 3000 Merks yearly, It is answered, this speciality makes no alteration, it being impossible to find different Cases, so perfectly agreing, but some circumstances will vary, but here the rule of the Lords Decisions is, that all rational Deeds shall be sustained, and if this be such a circumstance, that it renders the payment of the Debt in prejudice of the Conquesce, fraudulent, then it is relevant but not otherways, and still there is to be a difference wade betwixt first and second Contracts of Marriage, for if a man in his first Contract of Marriage gave no special provision, but a clause of Conquesce, whereby if the Husband should vo­luntarly evacuat the Conquesce, the Wife of his youth, and Mother of his Children would become destitute and miserable, It were infamous in him to evacuate such a Conquesce, except by inevitable Deeds; and any voluntary Deed would in Justice [Page]be reckoned fraudulent; but in a second contract where there is no portion, but a joynture that returns at dissolution, the like favour is not due. For if the Relict have an honourable provi­sion, whether by the first or second Marriage, it imports not, yea there is nothing more ordinary then that Heiresses do content themselves with the lifrent of their own Heretages, and oft times with less, yet in the case Robertson against Robertson 15th July 1673. It is plead for the Rclict who was Wife of the first Marriage, that she had only an clause of Conquesce, and no special provision, yet a bond originally taken in the name of the eldest Son during the Marriage, was sustained against her, unless there were not sufficient means for a competency to her Aliunde, in which case the Lords found, the bond would be fraudulent; and there is no question the Lady was very well advised in relation to these Cases she desired advice in, as how to convoy her Joynture, which was done to so good effect, that the Defunct with all the Influence and right of a Husband, could never come to one sixpence of the North-Countrey Joynture; but these Clauses were never advised by a Lawyer to have any special effect, whereof the Lords may be satisfied by the Pursuers own Assertion, that 3000 Merks of Joynture was offered; and was there ever any Lawyer that would prefer a general Clause of Conquesce to a special Pro­vision, which has a preference as to Moveables, to all Credi­tors, and is usually the best secured real Debt; so that the ne­glecting of a special Provision, is a demonstration that there was no Liferent under prospect, and that the Clause of Con­quesce was adjected of meer Stile and Formality. And Sir Andrew Gilmour who drew the Contract, would never have agreed to so unreasonable Clauses as these in the Contract are, according to the Pursners Interpretation, he being the De­functs Brother in Law.

To the Fourth, There was nothing ever decided contrary to what is now pleaded: for the Decision finding, That the Wife had Right to the value of a Fishing in Aberdeen, which by the custom of the place could not be bruiked by a Woman, was [Page]most ju [...], [...] like the Earl of Dumfermling Acquiring Lands in the Name of his eldest Son, was justly found, To have done a fraudulent Deed to evacuate the Conques [...]e, Yet betwixt the same Parties, it was also found, That the Earl having first acquired a pro­fitable Tack of the same Lands during the Marriage, and after­wards baving acquired the property, the Ladies Lyferent of the Lands extended no farther, than to the Tack-Duty con­tained in the Tack first acquired; On this ground, that the Lady was not provided to the Lyferent of Tacks, albeit it might have seemed that the Tack was extinguished by the Pro­perty: But still the Lords do restrict these Clauses as much as they can bear.

As to the Fifth, Pretending to Answer the Decisions addu­ced, it is answered, That the Decisions in case of Heirs of Conquesce, do by much more strong reason cut off the con­clusion of this Pursuers process. For Heirs of Conquesce, are more favourable in relation to Conquesce than Relicts; as was expresly found in the Case of the Lady Kilbocho, against the Laird; and Lady Rentoune against the Laird, where Lands Conquest were burdened with annual-rents of a part of the price resting, albeit in both the Lords declared they would have found otherwise in the Case of Heirs of Conquesce, so that Heirs of Conquesce being more favourable than Relicts, what ever doth exclude their Interest in Conquesce, must much more exclude the Relicts Interest, and the pretence that Heirs of Conquesce do represent the Defunct, whereas Relicts are Creditors, is of no moment, because in competition with Creditors, they are considered as Heirs, but in respect of the Heirs of Lyne (which is the Case of all the Decisions) they are most favourable Creditors.

To the Sixth, Founding upon the last Clause of the Con­tract anent sums due during the Marriage, alledged to be insert for a farther Security than the common Clause of Con­quesce, which varies this Case from all these beside it. It is answered, The Defender hopes he has already sufficiently [Page]cleared, that by the construction of the words in the Contract, nothing is comprehended that fell due after the Marriage. Et separatim, it is hoped that the Reasons already adduced, why the import of that Clause (as the Pursuer would have it) signifies no more than a common Clause of Conquesce, and consequently must be subject to the saids burdens, and be con­cluded with the same Decisions, and the force of what hath been said, is the more evident, that the Pursuer found her self obliged to recede from the first conclusion of the Summonds, for Imploying all sums due, and received, without exception, and did restrict the same to the sums imployed for the Payment of Debt, and in quantum Lucratus; whereby it is evident that Law does not sustain such an Obligment to imploy All sums received in the full Latitude of the Clause. And if it cannot be effectual as it stands in the Style of words, we must then con­sider what is the Cause, why Law restricts the effect of such Obligments, and we shall find the Cause to be the same why Law restricts the effect of Conquesce, as being against the Inte­rest and meaning of Parties, the rights of Property and Com­merce, and that such Clauses are only Destinations. Again, if we consider the Syle of both Clauses; Clauses of Conquesce are as peremptor to imploy all sums Conquesced, as this is alledged to be for sums during the Marriage. And seing the last Clause cannot be effectual in the full Latitude more than the first, what other estimate can be made thereof, than the known Marches and Land Marks, by which the Lords have bound­ed the effect of Conquesce. And as clauses of Conquesce do easily run in relation to sums purchased and acquired; so sup­pose a clause of Conquesce should run in these Terms, All sums Purchased, Acquired and received during the Mar­riage; can it be supposed that the word (Received) should make an alteration in the Case; or are not sums Acquired du­ring the Marriage, Purchased? And are not sums Purchased, Received during the Marriage? So the terms being Conver­tible, they cannot vary the Decision. 2. Et separatim, tho' it had been the express meaning of Parties, to have obliged [Page]the De [...]n [...] to [...] to be Received by him; yet such an Obligation could not have been effectual in Law: Because a Husband by his Jus Mariti hath right to all moveable sums falling under Communion of Goods: And farther his right thereto is unaccountable, and the Jus mariti of an Hus­band, it is so fixed and insured by Law, that inhaerit Ossibus, and cannot possibly be renounced in favours of the Wife, by any deed of the Husbands directly nor indirectly: Whereas by this clause as it is interpreted, the Husband should be effectually de­nuded of his Jus mariti in favours of his Wife, in so far as he would thereby be accountable to his Wife for her lyfrent-use, for his intromission with moveable sums, which in Law do be­long to him unaccountably. And as it is not controverted that the Jus Mariti doth imply an unaccountable right in the Person of the Husband, so it hath been found on most Just grounds that this right is incommunicable to the Wife, in the case of the Lady Pilton against Hay of Balhousie 2d. February. 1667. Where a bond of 1000. Merks yearly being granted to a Wife to be disposed of as she pleased, secluding the Husbands Jus Mariti; The Lords found that payment made to the Husband, without the Wifs consent, did exoner the Debitor, and exclude the Wifs executors: Which clears that a right could not be so qualified, but that it behoved to be Simply transmitted to the Husband, or null. But for farther evidence, that even the deed of the Husband himself cannot divest him of his Right, It was sound 13, July 1678 that a Husband having renounced his Jus mariti to a part of his Wifes Joynture in favours of his Wyfe, the right thereof did return to the Hus­band, albeit he suffered his Wife to possess the renunced Lands all her life time, yet the extant product of these Lands did be­long to him, and that he himself could not be excluded by the personal objection of his own Renounciation. The like was found in the case of Hamilton against the Lady Carberry. And, if the Husband could not by a Direct deed renounce the unac­counntable management, much less can he do it by a general and separate Clause, which would in consequence import a renoun­ciation [Page]thereof to his Wife, for the Jus mariti, consists not only in the Management, but it must be unaccountable.

3, Et Separatim, the Defender cannot be lyable In quantum Lucratus, upon this Clause, tho' it could be effectual in Law, unless it were subsumed and offered to be proven, that he was Lucratus, by applying sums of money received during the Mar­riage to the payment of his Debts. For albeit it were instructed that the Defunct did receive considerable sums of Money, and also that he payed considerable sums due by him▪ yet that could not infer that these debts were payed by sums of Money receiv­ed during the Marriage, seing the Defunct had another Subject than Sums of Money, out of which he could have payed his Debts viz 24. Chalders of Victual yearly as a part of the Pursuers Joynture, which in the debate is acknowledged to have been allocat for the Defuncts free disposal at his pleasure. Suppose then that the Defunct had consumed his Sallaries, and Pensions, upon the charges and expenses of his Family, or upon other reasonable and creditable occasions (as it is ac­knowledged he might have done freely and unaccountably) and that he were Lucratus by applying the saids 24. Chalders of Victual for the payment of his Debt; he could not be said to be Lucratus by sums of Money, but only by Bolls of Victual, for which, by the clause he is not accountable; and if the Pursuer will assert that he is Lucratus by sums of Money Asserenti incumbit probatio. And farther he had other subjects out of which payments might be made, viz. The Lands of Collingtoun which were stocked, as also he sold 100000. Merks worth of Lands, and there is nothing more ordinary, than, for overburdened Heritours to obtaine great eases, when they have ready money to pay, whereby the said 100000. Merks may have payed 100000 pounds of debt, So that my Lady cannot be exonered upon a presumptive, but must adduce a positive probation, that my Lord was Lucratus by sums of Money.

4 The Pursuer must not only prove, that the Defunct was once Lucratus by payment of his Debt, but that the said Lucrum did remaine with him, till the dissolution of the Mar­riage. [Page] [...] purging any of the Debts, did upon a just and reasonable cause, dispose of his releived Lands to his eldest Son by Contract of Marriage, as is alledg'd, the Pursuer cannot claim any interest in that purchass; But it ap­pears evidently by the Contract, that the Defender was then de­signed to suceced to his Father in these Lands, in so far as the very Clause upon which the Pursuer founds her conquesce to be provided to her in lyfrent, and the Bairns of the Marriage in fee, which failing to the Defuncts other Heirs appointed to succeed him, in his other Lands and Estate; whereby it appears, that as the Defender was the lineal Legal Successor of his Father, the Pursuer did not then envy his succession to the Estate of Col­lingtoun, which by her own clause of Conquesce, is designed his other Lands and Estate; so that the Lands of Collingtoun can never be reckoned Conquesce; nor can the Pursuer quarel the convoying the right therof to the Defender, seing by her own Contract, it is declared that his present Lands and Estate not contracted was designed to descend to his Lineal Heirs which could not be, unless it had been also Lawful to purge the same of Debts, being then burdened above the value, and as it was arbitrary to the Defunct not to have made any Purchase, so he might justly dispose of it: But that the Lords may be satis­fyed how Calumnious, and groundless this great noise of Pur­chase is, they would be informed, that the Defender being Married in Anno. 1670. Within a few years after the Contract, it was not possible the Defunct could make any purchase before the Defenders Marriage; Because all the Subject of his Estate was my Ladies Joynture of 36. Chalders of Victual, 200 pounds Sterling of Sallary, and the Lands of Collingtoun not then exceeding 3000 Merks; out of this, he had all the neces­sary charges of his Family, Servants, Coach, and Horses to lay out, and the Defender to intertain in his travels, and the Annual-rent of his weighty debt to pay, after which deductions there will remaine no place for Conquesce: And after the De­fender was Married, he lived in that intire Confidence with his Father, that all the portion he received, which was known to [Page]be [...] by his Father to him, was as much possest and enjoyed by his Fa­ther as by himselfe, never having heard of this pretence of Conquesce, and looking upon his Fathers interest and his own, as the same, many sums affecting the Estate were payed by him without so much as mention from whom the money was re­ceived, and there were no Assignations taken to any Debt, but alwayes Renounciations and Discharges; so that if this Cove­tous pretence should hold foot, my Lady should lyfrent the Defenders portion, which was four times greater then the Con­quesce, it being impossible to distinguish the one from the other.

In respect whereof, the Lords, are humbly intreated to give dis­tinct interloquitors upon the several grounds abovemention­ed, and particularly, 1 Anent the Extent and Import of the clause of Conquesce 2 Anent the Import of the second clause, if it does relate to sums due or falling due after rhe Marriage. 3 If the same could be of any greater force than a clause of Conquesce tho' it did relate to sums due after the Marriage. 4 If by such a construction the second clause would not be equi­valent to a Renounciation of the Jus mariti, as to these sums in favours of the Wife, and if such a Renounciation can con­sist with Law and former Decisions. 5 If the Pursuers pro­bation of the payment of Debts, and the receiving of sums of Money, could infer a sufficient evidente that these Debts were payed by the sums of Money, seing there were other Subjects out of which the Debts might have been payed. 6 If the Defunct can be reckoned Lucratus, seing he did not Die in the fee of these Lands releived, but was denuded there­of upon a most just and rational account, sine fraude, which are all distinct grounds separatly proponed.

A List of the Decisions related to in the Lord Collingtoun's In­formation, against the Lady Castle-haven.

THat the Husband hath the absolute Administration and Managment of all Rents, Annual-rents, and other Moveables, belonging to his Wife during the Marriage; not­withstanding any Renounciation of his Jus Mariti thereto, in Favours of the Wife, is evident from these following De­cisions, viz.

9 February 1667. Lady Colling­toun con­tra Lord Colling­toun.The Lords found, that the Clause in my Lord Collingtoun's Contract, renouncing his jus mariti in favours of his Lady, did not debar my Lord from the management, and administra­tion of the Rents destinate for maintenance of the Family; and that albeit the administration and management had been expresly renounced by him in the said Contract: The said re­nounciation had been contra bonos mores, and so void and null in Law; and that the Husbands administration being the In­herent Right and Priviledge of the Husband as such, was ab­solute and unaccountable, and could not be renounced in fa­vours of the Wife.

13 July 1678. Ni­colson con­tra Inglis.The Lords found, that a Wife having in her Contract of Marriage reserved a Power to dispose upon her Liferent with­out the Husbands consent, and the Husband having renounced his jus mariti to what was so reserved: The said renounciati­did recurre and accress to the Husband himself by the Mar­riage; and after Decease of the Husband, allowed Compen­sation to the Heirs of the Husband, against the Wife and her Assigney, upon the account of the Wises intromission Stante Matrimonio, with the Rents so reserved, and whereof the jus mariti was renounced, as said is.

2 February 1667. Exe­cutors of the Lady Pilton con­tra Hay of Balhousie.The Laird of Balhousie having granted Bond to his Wifes Sister the Lady Pilton for 1000 Merks yearly, to be imployed by her for any use she pleased. without her Husbands consent, and secluding his jus mariti; The Lords found, payment made to the Husband sufficient to Assolȝie from a pursute upon a [Page]Bond, notwithstanding that by the Bond it self, the Husbands jus Mariti was excluded.

A list of Decisions anent the Import and extent of Clauses of Provision in Contracts of Marriage, conceived in Favours of Heirs of Conquesce and Provision, and Bairns of second Marriages; for clearing, that notwithstanding such Pro­visions, and Obligments, the Husband, or Father, hath the absolute Power and Dominion and unaccountable Ad­ministration of the Conquesce.

THe Lords sound an gratuitous Bond granted by Thomas Cowan, to the Daughter of his first Marriage, long after his second Contract of Marriage, whereby he was ob­liged to provide all his subsequent Conquesce to the Heirs of that second Marriage, to affect his Conquesce during the said second Marriage:9 February 1669 Cow­an contra Young. Notwithstanding that the Daughter of the first Marriage, to whom the gratuitous Bond was granted, was both foris-familiat, and aliunde sufficiently provided before that time; and it appears by the debate, that as a Husband might freely have gifted all his Conquest to Strangers, so he might likewayes gift rational proportions thereof to his Chil­dren of former Marriages, notwithstanding any such obligment in his second Contract.

The Lords found, that the Obligments and Provisions for Conquesce in Contracts of Matriage, did not hinder the Con­tracters to dispone thereupon during their Lifetime:16 June 1676, Mit­thel contra The Chil­dren of Thomas Little-john And that all reasonable Deeds, albeit they were done or granted, with­out equivalent onerous Causes, were effectual, notwithstand­ing of such Obligements and Provisions of Conquesce; and that the Children in whose favours the saids Obligements of Conquesce were conceived, could not be heard to quarrel the same.

19 June Murray's contra Murray's.The Lords found, that rational Provisions to Children of a prior Marriage; could not be quarrelled upon the Clause of Conquesce in the Fathers second Contract of Marriage: And [Page] [...] 7000 Merks granted to the eldest Son of the first Marriage: Notwithstanding that the eldest Son, had succeeded to a con­siderable Land Estate by his Father: And in that Decision the Lords declared, that they would make the former Decision, Mitchel, contra, the Children of Little-John, a Rule for the future.

The Lords found that old Niddry having applied conside­rable sums for acquiring in new and preferrable Rights of the Lands of Lochtour, and for purging and disburdening the Lands, of other Incumbrances and Debts: The sums so ex­pended during his second Marriage could not be repute as sums Conquest during that Marriage;19 Februa­ry 1683. James Wanchop contra Laird of Niddrie. in respect Niddry had a right to the saids Lands of Lochtour, standing in his Person, be­fore that time: And found that James Wauchop as Heir of the second Marriage could have no Interest in the saids new ac­quired Rights, or for repetition of the sums expended for ac­quiring the same, upon the Obligment in his Mothers Con­tract of Marriage, for providing all the Conquesce to him: And this demonstrates, that sums expended for disburdening a mans Prior Heretage, of Debts and Incumbrances affecting the same, can never be repute Conquesce, albeit thereby the Estate be nottourly meliorat and improven, and the yearly Rent com­ing in to the man augmented.

A List of Decisions for clearing the import, and extent of Ob­ligments and Provisions of Conquest, conceived in Favours of Wives, as to their Liferents.

The Lords found, that albeit the Husband was obliged to provide the hail sums acquired during the Marriage, in favours of his Wife in Liferent; yet a Bond taken by a Husband pay­able to a Child of his former Marriage,10 Febru­ary 1629, Oliphant contra Phinnit. did not fall under the Obligment of Conquesce; and found, that Conquesce was only to be understood of what was standing in the person of the Husband, and undisposed of, the time of his Decease:

The Lords found, that a Husband having, Stante Matri­monio, acquired the property of Lands, formerly holding of himself;26 Novem­ber 1629. Lady Dum­fermling contra Earl of Dumferm­ling. and thereafter before his Decease, disponing the same to be like wayes holden of himself, for a double or triple Few-Duty; That neither the said Acquisition nor Improvement, by tripling the Few-Duty, did fall under the Obligment of Con­quesce in the Wife's Contract of Marriage, albeit the same was acquired, and improven in her time; In respect the Earl had a Right to these Lands Prior to the Marriage, albeit the same was only a Right of Superiority.

15 July 1673. Robertson contra Robertson.The Lords found, that an obligement for providing the Wife to all the Conquesce, could not hinder the Father to grant provisions to his Children of a former Marriage, and even to the eldest Son and appear and Heir.

Alexander Frazer having in his contract of Marriage with Christian Frazer his second Wife, provided her to a mean Provision of the annual rent of 3400 Merks, and to the lyfrent of the half of the Conquest that should be made during the Mar­riage, and having for preventing any debate anent the Conquest insert in the said contract,8 December 1687 Fra­zer contra Frazer. a particular inventar of his Estate, ex­tending to 11000 pounds scots or thereby. It happened there was a considerable Conquesce of 15 or 16000 pounds, made during that Marriage, But Alexander Frazer the Husband, did exhaust and spend all the said conquesce by gratuitous Do­nations to his eldest Son and Daughter of the first Marriage, of 8000 pounds, Scots, and upwards, and did expend the sum of other 8000 pounds, or thereby, that was likwayes acquir­ed during that Marriage, for payment of other Debts, for which he was engadged Prior to his said second Contract.

Christian Frazer, having after the decease of the said Alex­ander, pursued his Heir, for the half of the foresaid Conquesce: and it being debated, whether the gratuit ous donations to the Children of the first Marriage, and the sums payed out for Debts contracted and due by the Husband before his entring into the second contract of Marriage with the Pursuer, should affect the Estate belonging to the Husband before that Contract and [Page]the saids gratuitous Donations and Debts sua payed, should be sustained to exhaust the Conquesce, in prejudice of the Relicts Lyfrent, who was so meanly provided. The Lords found that the Heir of the Defunct, ought to have the 11000 pound to which the Fathers Estate was estimate in the said second Contract, allowed and made free to him, in the first place, and that the haill debts due by the Husband when he died, whether contract­ed before, or after the second contract of Marriage, ought to be payed, and affect the Conquesce in the Second place and that the Relict could only have right to the half of the superplus of the Conquesce (if any was) after the two Deductions above­written.

It is observable, that albeit there were two Bills given in craving the said interloquitor to be rectified upon thir grounds, 1 That a considerable part of the 11000 pounds, to which the Husbands Estate was estimat, was exhausled by payment of Debts due before the second Contract, and 2 That the 4000 pounds gifted by the Defunct to his oun Heire of Line, who was obliged to Implement the Fathers obligment anent the Wifes lyfrent, might at least be sustained as Conquesce. Both bills were refused, and the first interloquitor adhered to; So that the Husbands Estate which was once for the most part exhausted by the foresaid gratuitous Donations, and antece­dent Debts, as said is, immediately after the second Marriage, and before any Conquesce could be made, was Sustained to be made up, to the Heir out of the Subsequent Conquesce, with­out allowing the Relict her lyfrent of the equal half thereof, conform to the obligments of the Contract, albeit her other provisions were so mean and inconsiderable, And the principal decreet is produced marked with several letters of the Alphabet, directing to the grounds therein pleaded, and determined and herein repeated, and the sorsaid Decision was so solemn, that the Lords declared to the Procurators on both sides Judicialy, that they would observe the said Decision in all such cases there­after.

20 Decem­ber 1665. Laird of Kilbocho contra La­dy Kilbo­cho.The Lords [...]o [...]nd, that a [...] was obliged to pay me an­nual-rents of the price of Conquest Lands. notwithstanding that she was provided Simply and absolutly to the Conquesce, and that the Heir was sufficiently able to have payed the same. And by this Decision, as also by an other Decision betwixt the Earls of Dumfermling and Callendar, The Practick alledged upon by the Pursuer in the case of the Countess of Dumfermling in Anno. 1625 is fully answered, and elided.

THE INTERLOQUITOR, Edinburgh 29 January 1690.

THe Lords having advised the debate, Finds, that the clause of Conquesce lybelled, did not hinder the deceased Lord Collingtoun to spend his yearly revenue as he thought fit. And find, that the Lady, be vertue of the clauses in the Contract; has right to the Lyfrent of all sums, which belonged to him the time of his entering into the second Marriage, or the time of his decease. But they find, that albeit it were cleare that he had releived his old Lands and Estate, of Debts, which affected the same, the time of his entering into the second Marriage, by sums acquired during the second Marriage; Yet that the Lady by no clause in the contract, has any right to pursue for the lyfrent of the Lands releived by such sums. And that the Lord Collingtoun might have imployed the sums so acquired; for re­lieving his Estate of Debts affecting the same the time of en­tering into his second Marriage, Notwithstanding of any clause in the Contract.