Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Graham and Oliphant
v.
Finlay's Bairns

Date: 10 February 1629

Click here to view a pdf copy of this documet : PDF Copy

Graham, relict of umquhile Finlay, her first husband, and spouse to Oliphant, her second husband, had a clause in her first contract of marriage, whereby her husband was obliged to infeft himself, and her and the heirs to bs gotten betwixt them, in all lands, annualrents, tacks, roums, possessions, or sums of money, that he shall happen to conquesch during his lifetime. Notwithstanding of the said contract, her umquhile spouse laid out certain sums of money, in some of his bairns' names. After his decease, she and her second husband pursue the bairns for her liferent of the said sums provided to them, being her husband's conquest, and so provided to her by the said contract of marriage; but the bairns being absolved, she intents a new action against her eldest son, being heir, to hear and see him decerned to provide to her as much annualrent, during her lifetime, as his father had provided his other bairns, seeing it was found that she could have no action against the said bairns for the same. It was answered, That the clause in the said contract could not be so strictly interpreted, that thereby a man should be debarred from making provision to his bairns out of a part of his conquest; and the wife being sufficiently provided, according to her estate and her husband's means, could have no action against the heir for providing to her as much as was disponed to the rest of the bairns. And it was farther alleged, This woman, being widow, with her consent caused fill up the bairns' names in the bonds, which wrere left blank, in her keeping, by her umquhile husband. Which two allegeances, being conjoined, the Lords found relevant.

Page 263.