Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Captain Ruthven and his Spouse
v.
The Viscount of Oxenford, George and Mistress Catharine\Macgills

Date: 20 November 1670

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Captain Ruthven and his spouse pursuing the Viscount, as executor to his father, for her part of the moveables belonging to her as one of the bairns, besides the heir;—It was alleged for the defender, That there ought to be deduction of the portion natural and bairns' part, which did belong to Mrs Marie, and now did belong to the defender, as her executor.

To this it was replied, That the said Mrs Mary had a bond of provision, from her father, in full satisfaction of all bairns' part of gear and portion natural, which could fall to her by her father's decease; and thereby was secluded from her part of the moveables.

It was duplied for the defender, That, notwithstanding the said bond of provision, her portion natural was due; because the defunct, in her own time, had the benefit of election, either to accept of the bond, or to come in as a bairn with the rest of her brethren and sisters; which benefit did now accrue to the defender her executor; likeas they did now make use thereof.

The Lords did repel the defence and duply; because that, the time of the defunct's decease, the provision contained in the bond was greater than the portion natural that would have fallen; in which case she could not have the benefit of the election, unless she had conferred her provision with the rest of the bairns: neither could the Viscount, as one of her executors, now crave the same; because the bond of provision, being a debt due by him as heir, he could not disclaim the same to be free of that debt, and crave that her portion-natural might be deduced, in prejudice of Captain Ruthven and his wife, who, being of another marriage, could be none of her executors. And for the said George and Mrs Margaret, they could not crave the same, it being to their prejudice and loss, by deducing so much off the whole bairns' part; so that it appeared to be a mere collusion betwixt them and the Viscount their brother, who was heir, to free him of the bond of provision, to which he was liable; and to diminish the said Mrs Catharine's portion.

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