Bessie Skene and her Spouse v. The Heir of Thomas Forbes
Date: 14 March 1623 Case No. No 1.
He who by contract of marriage, was bound to infeft his wife in conjunct fee of all future conquests, acquiring thereafter lands, holden burgage, which, by acts of the town, could only be holden by burgesses, their heirs male, &c. his heir was ordained præstare damnum et interesse to the relict.
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Thomas Forbes, burgess of Aberdeen, by his contract of marriage with Bessie Skene, obliged himself to infeft her in conjunct fee, in all the lands and annualrents he should conquest, and to provide the same to the heirs to be procreate betwixt them; which failing, the half to his heirs, and the other to her heirs, heritably. He thereafter conquested the lands of Robisland, and certain fishings holden feu of the town of Aberdeen, and lent 6000 merks to Mr William Forbes of Craigivar, to himself in liferent, and to one of his daughters in fee. He being deceased, his relict pursued her son, heir to her husband, to infeft her in liferent, and to provide the fee of all the lands and annualrents conquested by her husband, to the heirs of their marriage; which failing, the half to his heirs, and the other half to her heirs. The heir suspended, alleging, That he could not infeft her in Robisland, and the fishings, because, by acts of the Magistrates and Council of Aberdeen, ratified by Queen Mary, it was not leisom to them to feu any of their lands or fishings, but to actual burgesses of the town, and their heirs male, and that all heirs female were expressly excluded; and also, it was thereby provided, that no infeftment of conjunct fee or liferent should be given thereof to any woman; and so the charger, not being capable of any infeftment to these lands, the letters should be simpliciter suspended. Notwithstanding whereof, the Lords found, That the heir should give her damnum et interesse, because he was not to be allowed to make any conquest which might prejudge her of the benefit of conjunct fee of all his conquest, according to the provision of her contract of marriage.—Next it was alleged in the suspension, That the relict could have no conjunct fee of the 6000 merks owing by Craigivar, because it was not conquest, the defunct not being infeft; but only that the term of payment being bypast, that annualrent should be paid to the said Thomas Forbes during his life, and to his daughter after his decease; notwithstanding whereof, it was found conquest of an annualrent, and that she should be infeft therein. The husband had conquested the wadset of a tenement in Aberdeen, wherein she was also ordained to be infeft, and in case of redemption that the money should be re-employed to her behoof during her lifetime.
