[0000] 1 Brn 228
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.
Broune of Gorgiemiln
v.
Thomson's Heir
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Broune of Gorgiemiln married his daughter on Thomson. He deceased before year and day. The tocher-good was 5200 merks;—whereof 1000 merks was paid soon after the marriage: the other £1000 should not have been paid till Whitsunday thereafter. He died in March. On his deathbed, his father-in-law, before the term of payment, comes and really delivers to his good-son the £1000; who, to gratify his wife, instantly gives back the sum, and grants discharge of the haill tocher-good. This father-in-law pursues for repetition of the tocher, in respect his good-son died before year and day after the marriage. It was excepted by the heir of the defunct, that he ought not to restore the £1000, because the payment was simulate; seeing it was instantly taken up again, and a discharge granted by the defunct, in lecto agritudinis, of the haill, which could not burden the heir. It was answered, That he might lawfully dispone his own gear in his own time. The Lords found, That, on deathbed, he might not dispone any of his moveables, but as meikle as fell to the dead's part;
and, seeing his wife fell no part thereof, he having one bairn living procreate of another wife, the half only pertained to the defunct; and so £500 of the £1000 was only ordained to be restored. Page 259.
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