Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Anent the Marriage of Apparent Heirs, in Wardholdings
Click here to view a pdf copy of this documet : PDF Copy
The Lords found, in the case of my Lord Colvill, in February, 1667, that an apparent heir's precipitation of his marriage when his predecessor is upon deathbed, to frustrate the Exchequer, or other superior of ward-lands, of the benefit of their marriage, is unwarrantable; and therefore found them liable in the casualty, as if they had been married after; as may be seen at the forecited place, where they went upon Balfour's authority. (Skeen, in his learned notes on Quoniam Attachiamenta, cap. 91. in Latin, tells sundry decisions of the same.) Yet it may be argued, that an apparent heir should be permitted to marry in articulo mortis of his predecessor, as well as the law allows a man to marry his concubine in articulo mortis, ad effectum legitimandi bastardos ex ea genitos, whereof Craig gives an instance in the Lord Semple, p. 230; for both equally prejudges the fisk. Yet there seems to be some disparity; for the marriage of the apparent heir, (if it had not been precipitated,) were a certain and uncontroverted casualty befalling to the superior. That of bastardry is not so: because the bastard may dispone, in liege poustie, his means to whom he will; and if he have lawful children, they succeed to him without any right ab intestato; and so nothing would fall due to the King, or lord of regality, if it be within one; and they have right to bastardies and last heirs, which is doubted. 2do, Marriage is most favourable, and therefore allowed at any time; and yet its principal end, which is procreatio prolis, cannot then be obtained; et cessante causa, cessare debet effectum; and this reason is common to both cases, only in the last there is the favour of legitimation superadded. Vide supra, July, 1671, No. 235.
If an heir of ward lands be infeft in his father's lifetime, his marriage is not due to the superior; and if he has got one marriage, he will not get the second when he falls a widower. Alias in an heiress of ward-lands.—See Skeen and Stairs on the Casualty of Marriage.
