Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Margaret Aiton
v.
Janet Watson

1635. Feb. 6 and 27.

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By contract of marriage betwixt Mr Andrew Aiton and Janet Watson, Captain Watson, her father, was bound to pay to the said Mr Andrew, in name of tocher, 10,000 merks, at Whitsunday 1630, at the receipt whereof Mr Andrew was bound to employ 5000 merks thereof upon land or annual-rent, to him and her, and the heirs to be procreate betwixt them; which failyieing, to his heirs. Mr Andrew, having got payment of 5000 merks thereof, maketh assignation of the other 5000 merks, destined to be employed, as said is, in favours of his spouse, and the heirs begotten betwixt them, (she then being great with child;) and, in case of their decease, 3000 merks thereof to her and her heirs, and the other 2000 merks to his sister's children. This assignation was sought to be reduced upon this reason, at the instance of Margaret Aiton, sister and heir to the said Mr Andrew, That the said 5000 merks, being destined by contract of marriage to be employed upon land or annual-rent, was heritable, and, consequently, could not be disponed by Mr Andrew in lecto ægritudinis. Alleged, Absolvitor; because the said sum was noways heritable, neither by infeftment nor payment of annual-rent: And for the destination, it did not alter the nature of it; but it remained always moveable till it had been employed, conform to the contract, and so might have been assigned. Replied, From the beginning it was heritable, being destined to be employed upon land or annual-rent, and so could not have been assigned in prejudice of the heir. The Lords found the exception relevant.—6th February 1635.

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In the former cause betwixt Aiton and Watson, it was further replied by the pursuer, That the reason of reduction was relevant; because, albeit the sum was moveable, yet, it being destined, by the contract of marriage, to be employed heritably upon land or annual-rent to him and his heirs, the defunct could not alter the obligement conceived in favours of his heirs, upon his death-bed; because, by our practique, nothing done in favours of an heir can be altered upon death-bed to his prejudice. Duplied, Our custom, in this point, being against the common law, and founded only on practique, cannot be extended farther than it hath been in use hitherto, viz. That no heritable thing can be analyied upon death-bed; but so it is, that this obligation is not of this kind, as an actual heritable thing. Next, The bond would have fallen under escheat; ergo it might have been assigned quocunq. tempore: Sicklike it would fall under testament, and behoved to be confirmed. Triplied to the two instances, Moveable heirship will fall under escheat, and yet cannot be assigned in lecto ægritudinis: And, although it behoved to be confirmed, yet the heir would compel the executor, after it were confirmed, to employ it conform to the destination in the contract. The Lords found the reason of reduction relevant, in regard of the reply, &c.—27th February 1635.

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