Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lady Fingask v. Her Children and their Tutors
Date: 27 July 1671
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In the Lady Fingask her action against her children and their tutors, she craving the annualrent of the 3000 merks left her by way of additional jointure in her husband's testament:
It was alleged,—The heir behoved to be assoilyied therefrom, because being a deed in lecto, and so could not prejudge him.
To this we answered,—That albeit it was done on deathbed, yet the heir must be liable therefore, because it depends upon an act inter vivos, viz. her contract of marriage, by which, acknowledging the provision he had put her in to be mean, he reserves to himself a power at any time in his lifetime, etiam in ipso articulo mortis, to burden and affect his heir with what farther provision and additional jointure he shall judge fit; so that what he has done in his testament is only in prosecution and the exercise of this power.
To this it was replied,—That that provision and reservation could never salve it, because it was contrary to a fundamental law, with which none can dispense.
We were to have the Lords' answer on this.
They altogether declined to tell their sentiment thereon: but found if we would still insist to burden the heir with the 3000 merks contraverted, because of the reservation made inter vivos, they would hear us in their own presence press that point from reasons in jure; but if the lady would insist for it as a legacy to affect the free gear, then they would ordain her to be answered secundum vires inventarii, and to come in with the other legacies pro rata. Vide supra, No. 7, [Mosman against Bells, February 1670,] and No. 160, [March 1671.]
Sir George Lockhart was of opinion that a man's own private deed was not enough to warrant such dispositions on deathbed. Yet thought if a man had his lands given him by his Majesty's charter, or if he caused insert in his charter any such power, that the same would sustain quoad the lands contained in that charter; (which power the Earl of Teviot had.) De quo multus dubito. The tutors offered her assignations to bonds for her liferent use; see this repelled 13th February, 1629, Cochrane and Dauling.
