Scottish Court of Session Decisions

Subject_1 ADULTERY.

Elisabeth Lyle, Relict of Archibald Douglas of Lumsdean, and John Douglas, her Son,
v.
Archibald Douglas, now of Lumsdean

Date: 22 June 1670
Case No. No 6.

Tis unlwaful for the person divorced, to marry the person with whom the adultery was committed, and the children begotten of such unlawful conjunction, are unhabite to succeed as heirs to their parent.

Act 20 Parl. 1600.

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The said Elisabeth as liferenter, and her son as fiar, having intented action against Archibald Douglas now of Lumsdean, upon a bond granted to them for the sum of 4000 merks, super hoc medio, That the father had disponed the estate of Lumsdean to the defender, with a reservation to burden the same with the foresaid sum, and accordingly had granted them this bond, whereupon they now pursue.—It was alleged for the defender, That he could not be liable by virtue of the resignation contained in his right, because it was only conceived in these terms, that he should have power to burden the lands with 4000 merks, at any time during his lifetime, without the addition of these words ‘etiam in articulo mortis,’ which in law did only import, that he might burden the lands when he was in his liege poustie; whereas it was offered to be proven, that the bond granted to the pursuer was in lecto œgritudinis.—It was replied, That by our law, disposition of lands, or burdening the same on death bed, were only prohibite in prejudice of lawful heirs; whereas the disposition was so far from being granted to him as apparent heir, that he was gotten in adultery, after a sentence of divorce betwixt Manderston and his wife, upon her bringing forth of the same defender during her co-habitation with the deceased Archibald Douglas of Lumsdean, and so his right fell within the 20th act, 16th Parliament, King James VI. declaring that children gotten in adultery, after divorce, were not capable of succession, albiet they should be married after the sentence of divorcement.

The Lords did repel the defence, in respect of the reply; and found, That the disposition made to the defender being in prejudice of John Douglas, who was the only lawful apparent heir, being affected with the reservation foresaid, the bond made to him and his mother, albiet granted on deathbed, was obligatory, and that such reservations, rights, and dispositions, made to strangers, might be made effectual by bonds granted in lecto. And whereas it was duplied, that the defender's father and mother did co-habit by the space of twenty years, and that it was offered to be proven that he was married, whereby he was legitimate; The Lords would not sustain the same; because, though it were proven, yet the marriage was null, and the defender incapable to be an heir by the foresaid act of Parliament.

Fol. Dic. v. 1. p. 23. Gosford, MS. No 274.