Scottish Court of Session Decisions

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

Margaret Ayton
v.
- Watson, Relict of David Ayton of Kinglassie

Date: 27 February 1635

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In a contract of marriage, passed betwixt Mr David Ayton of Kinglassie, on the one part, and Captain Andrew Watson and his daughter, thereafter spouse to the said Mr David, on the other part, the said Captain Andrew was obliged to content and pay in tocher with his daughter, the sum of 10,000 merks, at Whitsunday after the marriage; and the said Mr David was obliged, at the receipt of the last 5000 merks, to employ the same upon land or annualrent, to himself and his future spouse, and the heirs to be gotten betwixt them; which failing, to the said Mr David his heirs whatsomever. The sum of the tocher contracted by the said Captain Andrew bore annualrent. After the term of payment, Mr David contracted a lingering disease, and, about six weeks before his death, he makes an assignation of the said 5000 merks of tocher, resting unpaid thereof; 3000 merks to his wife, and 2000 merks to his sister Margaret Ayton her bairns; which Margaret, after her brother's decease, being served heir to her brother, intents a reduction of this assignation of 3000 merks made by her brother to his wife, as done in lecto ægritudinis, in prejudice of the heir. It was excepted, That notwithstanding of the destination contained in the contract, yet, the sum not being employed, remained still moveable, and might have fallen under escheat; in respect whereof, he might have disponed thereupon by testament or assignation, as he pleased, etiam in lecto ægritudinis. Whereunto it was replied, That albeit it remained moveable, yet the obligement contained in the contract could not be altered on his death-bed, in prejudice of the heir. Which exception the Lords repelled, in respect of the reply.

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