Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

Margaret Stevinson and Thomas Newtoun
v.
Margaret Ker

1665. July.

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There being a process pursued at the instance of Margaret Stevinson and Thomas Newtoun against Margaret Ker, as executrix or intromissatrix with the goods and gear of umquhile William Stevinson, her husband, who was bound as cautioner for Sir Alexander Belshes of Tofts, for payment of £500 contained in a bond;—it was alleged, That she could not be convened ut supra for payment; because she is executrix-creditrix confirmed to her husband upon a bond made by him to her divers years before his decease, which was all the provision she had to live on. It was answered, That the bond being a donation stante matrimonio, it could not prejudge lawful creditors, Likeas, it wants witnesses; and, unless it were proven that it was truly subscribed of the date therein mentioned, it must be holden to have been done on deathbed, and it can be of no other force than if it had been done on deathbed. It was replied, That there being no contract of marriage betwixt the parties, and the defender having brought means with her to her husband, it was lawful to the husband, quocunque tempore before his death, to grant a provision to his wife, either before or upon deathbed, for her necessary aliment, and to supply the want of a contract of marriage. The Lords, before answer, ordained the defender to condescend what means her husband got with her, where, and by whom paid, and how she is able to prove the payment thereof.

No 161, Page 114.