Scottish Court of Session Decisions

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

Elizabeth Whyte, and Rippath, her Husband,
v.
James Douglas's Heirs

Date: 20 February 1629

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Elizabeth Whyte, relict of umquhile James Douglas, clerk of Duns, and Rippath, her spouse, for his interest, pursue her first husband's heir, to provide her to the annualrents of the heritable bonds during her lifetime, which were made to his father after the marriage, some of them bearing the annualrent to be paid to him and his heirs, as well infeft as not infeft, but bearing no clause whereby the debtor was bound to infeft the creditor's other bonds, bearing only to pay annualrent, aye and while the principal sum be paid. The reason of the pursuit was one clause in the contract of marriage, whereby umquhile James Douglas was obliged to infeft his future spouse and himself in all lands and annualrents that he shall happen to acquire or conquesche during the marriage. It was excepted for the heir, That the clause of the contract could not oblige the contractor to provide her to no other annualrents but those wherein he was either infeft, or, at the farthest, in these bonds, in which the debtors were obliged to infeft him. The Lords found, That the heir should provide [her,] habili modo, to all the foresaid heritable bonds which bore annualrent to be paid to him. Ratio:—if they had not been heritable, she would have fallen into the third of the sums contained in them.

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