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 〈…〉 oâ— 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 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 â—â—â—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
An Exact and Faithful RELATION OF THE PROCESS Pursued by Dame Margaret Areskine Lady Castle-haven Relict of the Deceased Sir James Foulis of Collingtoun against Sir James Foulis now of Collingtoun before the Lords of Council and Session WITH CERTAIN REMARKS Upon the Import and Extent of PROTESTATIONS For Remeed of LAW in General And in Particular upon the Protestation or Appeal offered by the LADY EDINBVRGH Printed at the Society of Stationers Printing-hâ—â—â—â— Harts-Close over-against the Trane Church 〈…〉 An Exact and Faithful RELATION OF THE PROCESS Pursued by Dame Margaret Arsekine Lady Castle-haven Relict of the Deceased Sir James Foulis of Collingtoun Against Sir James Foulis now of Collingtoun before the Lords of Council and Session DAme Margaret Areskine Lady Castlehaven having succumbed in a Process pursued at her Instance against Sir James Foulis of Collingtoun She did Appeal and Protest for Remeed of Law against the Interloquitor of the Lords of Session And in prosecution thereof hath caused Print and publish a Petition to be presented by her to the High Court of Parliament In which she doth not offer any distinct Relation of the Process Debate or Decision but satisfies her self with general groundless Assertions of the Justice of her Cause and of the Iniquity of the Decision whereby she pretends All Faith in Contracts is Violated the Law which ought to protect Widows wrested to their Ruine And fraud and indirect Dealings are not only encouraged but own'd to be the design of Law And which Decision as it is pretended Doth impugne Law Equity Justice and Honesty The Lady hath not thought fit to disperse or publish any part of the Process or Debate upon which the Interloquitor proceeded For verifying of this great Charge against the Supreme Ordinary Court of Justice in the Nation whom our Predecessors thought worthy to be the Depositars of the Securities of their own and our Properties and Possessions but she is pleased to lay the weight of all upon her own Assertion And albeit bold Calumnies do oft-times leave some Impression yet this being a matter of the highest Concern to the Interest and quiet of all not only those who have Process depending but such as may have them It cannot be unacceptable that Collingtoun should publish to the World the whole Process and Debate upon which the Interloquitor of the Lords of Session proceeded which indeed had been the proper part of the Lady who makes the Complaint By which means either the Lady's Charge will be made good or otherwayes the Justice of Collingtoun's Defences and the Integrity of the Lords will be Vindicate and the Nation satisfied and quieted in the Evidence that their Rights and Securities are safely lodged And it is left to the Judgement of all unbyassed persons whether the former or latter doth appear upon perusal and consideration of the Process which followeth with so great Candor and Favour to the Lady that no part of her Claim or any Evidence thereof produced is omitted though several Decreets and Instructions produced for Collingtoun be forborn least the Process might thereby appear too prolix Copy of the Lady's Contract of Marriage AT Edinburgh the first day of June one thousand six hundred and sixty one years It is Appointed Agreed Contracted and Ended betwixt the Honourable Parties following to wit Sir James Foulis of Collingtoun Knight one of the Senators of the Colledge of Justice on the one part And Dame Margaret Areskine Relict of Vmwhile Sir Joh. MckenÈie of Tarbat on the other part in Manner Form and Effect following That is to say the foresaids Parties Binds and Obliges them to Solemnizat and Accomplish the Holy Band of Marriage each of them with the other in face of Holy Kirk with all Solemnities requisite betwixt the date hereof and the _____ day of _____ next to come but longer delay In Contemplation of the which Marriage the said Sir James Foulis Binds and Obliges him to Renounce Quite-claim and Over-give Likeas he by thir Presents Renounces Quite-claims and Over-gives all Right Tittle and Interest which he jure mariti can have claim or pretend in and to the said Dame Margaret her Conjunct-Fee and Liferent-Lands Teynds and others belonging to her wherever the samen lye within this Kingdom declaring the generality of this present Renounciation to be as sufficient as if the said haill Conjunct-Fee or Liferent-Lands Teynds and others were insert and set down here intill Renouncing all Benefit of the Law or other Benefit whatsoever either competent or that may accress to him by this Contract or by the subsequent Marriage or by any manner of way whatsoever to her saids Conjunct-Fee or Liferent-Lands or any part thereof for now and ever in Favours of her self to be used and disposed of at her pleasure And by thir Presents doth take his hazard of what he may have otherwayes by the said Dame Margaret And farder The said Sir James Foulis by thir Presents Binds and Obliges him his Heirs Executors and Successors That in case it shall happen him at any time during the Marriage betwixt him and the said Dame Margaret 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 samen And take the Rights and Securities thereof in Favours of himself and the said Dame Margaret the longest Liver of them two in Conjunct-fee and Life rent and to the Heirs-male to be Procreat betwixt them Whilks failing to the said Sir James his other Heirs who are appointed to succeed him in his other Lands and Heretages And in case their shall be no Heirs Male but Female The said Sir James Binds and Obliges him and his forsaids to provide them to the half of the said Conquest and the other half thereof to pertain and belong to the said Sir James his other Heirs foresaids Which Provision above-written the said Dame Margaret accepts likeas it is hereby declared That the samen is granted and provided to her ard Heirs foresaids to be Procreat of the said Marriage in full contentation and satisfaction of all other Conjunct-Fee Terce Third Right of Moveables Heretage or any other Right whatsoever except allennarly the Mannor Place and Dwelling-house of Collingtoun and Yairds thereof which are hereby appointed and allotted to the said Dame Margaret for a Dwelling-house during her Life-time Providing always she sufficiently Maintain and Uphold the said House and Houses in as good Condition as they shall be in at the time of the said Sir James his Decease And that she shall not Directly or Indirectly be her self or any others in her Name or at her Direction cut or destroy any manner of growing Trees or Planting about the said House or Yairds or within any part of the Bounds of Collingtoun for no pretext nor use whatsoever And for the more Security both the saids Parties are content and consent that thir Presents be insert and Registrat in the Books of Council and
Session or in the Court Books of any other competent Judge within this Kingdom to have the strength of an Decreet of any of the saids Judges and their Authority Interponed thereto that executorials of Horning upon an simple Charge of ten dayes and others competent may be direct hereupon And for that effect Constituts Their Procurators promitten de Rato c. In witness whereof both the saids parties have Subscribed thir presents which are written be Alexander Keith Servitor to Mr. Andrew Gilmour Advocate day place and year of God above written Before thir Witnesses Sir William Murray of Dreghorne Master of His Majesties Works and Sir John Foulis of Ravelstone Younger Sic Subscribitur Ja. Foulis M. Areskine W. Moray witness Jo. Foulis witness 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 MekenÈie 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 Bridge-lands 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 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 Bridge-lands 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 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 Vmwhile 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 Life-time 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
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 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 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 thaâ— 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 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 â—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 â—ngenuity then to have sham'd his Lady with mentioning this Debt which neither is 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 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 Benefiâ— 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 Dâ—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 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
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 naâ—ure that ever theâ—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 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 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 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 free and â—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 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
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 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 the Deâ—â—nâ—â— 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 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 〈…〉 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 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 more 's 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